Linthicum v. Wagner

94 F.4th 887

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 29, 2024
• Docket: 23-4292
• Status: Published

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DENNIS LINTHICUM; BRIAN J. No. 23-4292 BOQUIST; D.C. No. 6:23-cv-01624-AA Plaintiffs - Appellants,

REJEANA JACKSON; KLAMATH COUNTY REPUBLICAN CENTRAL OPINION COMMITTEE; JOHN SWANSON; POLK COUNTY REPUBLICAN CENTRAL COMMITTEE; CEDRIC HAYDEN; JOHN LARGE; LANE COUNTY REPUBLICAN CENTRAL COMMITTEE,

Plaintiffs,

v.

ROB WAGNER, Oregon Senate President, individually and in his official capacity; LAVONNE GRIFFIN-VALADE, Oregon Secretary of State, in her official capacity,

Defendants - Appellees.

Appeal from the United States District Court for the District of Oregon Ann Aiken, District Judge, Presiding

Argued and Submitted February 9, 2024 Portland, Oregon

Before: Ronald M. Gould, Jay S. Bybee, and Daniel A. Bress, Circuit Judges. PER CURIAM: Concurrence by Judge BYBEE; Concurrence by Judge BRESS

Actions have consequences. When those actions might be described as

expressive in nature, the First Amendment sometimes protects us from the

repercussions that follow. This is not one of those instances. A recent amendment

to Oregon’s Constitution disqualifies from the next election any state senator or

representative who has accrued ten or more unexcused absences from legislative

floor sessions. In 2023, State Senators Dennis Linthicum and Brian Boquist engaged

in a legislative walkout spanning several weeks, each accumulating more than ten

unexcused absences. Oregon’s Secretary of State disqualified them from appearing

on the ballot for the 2024 election. The Senators seek a preliminary injunction,

arguing that they should not face the consequences of their walkout under the Oregon

Constitution because their absences constituted a protest protected by the First

Amendment to the U.S. Constitution. Under Nevada Commission on Ethics v.

Carrigan, 564 U.S. 117 (2011), we must disagree. We affirm the district court’s

denial of a preliminary injunction.

I. BACKGROUND

The Oregon Constitution creates a Legislative Assembly consisting of a

Senate and a House of Representatives. Or. Const. art. IV, § 1. The Senate has thirty

members; the House, sixty. Id. art. IV, § 2; see Or. Rev. Stats. § 188.305. The

2 Legislative Assembly is considered part-time because it meets annually, but for a

limited number of days. Subject to certain exceptions, in odd-numbered years the

Legislative Assembly meets for no more than 160 days; in even-numbered years, for

no more than thirty-five days. Or. Const. art. IV, § 10(1). The members of each

house receive a salary for their services “to be established and paid in the same

manner as the salaries of other elected state officers and employees.” Id. art. IV,

§ 29; Or. Rev. Stats. § 171.072(1). The Constitution further provides that “[t]wo

thirds of each house shall constitute a quorum to do business,” although “a smaller

number may meet . . . and compel the attendance of absent members.” Or. Const.

art. IV, § 12. If a house, with a quorum present, fails to organize within the first five

days, “the members of the house so failing shall be entitled to no compensation . . .

until an organization shall have been effected.” Id. Any member of either house has

“the right to protest, and have his protest, with his reasons for dissent, entered on the

journal [of the house].” Id. art. IV, § 26; see also id. art. IV, § 13 (providing that

“[e]ach house shall keep a journal of its proceedings”). And, “except for treason,

felony, or breaches of the peace,” the members are not subject to arrest during a

legislative session and may not “be questioned in any other place” “for words uttered

in debate in either house.” Id. art. IV, § 9. “Either house,” however, “may punish

its members for disorderly behavior,” including by expulsion from the house. Id.

art. IV, § 15.

3 Because of the supermajority quorum requirement, a minority of legislators

may preclude legislative business through their absence. Legislative walkouts in

Oregon’s legislature have become increasingly common in recent years. See

Knopp v. Griffin-Valade, 372 Or. 1, 4 (2024) (per curiam). In direct response, more

than sixty-eight percent of Oregon voters approved Measure 113 in 2022, which

amended the “Punishment and expulsion of members” provision of Oregon’s

Constitution to include the following:

Failure to attend, without permission or excuse, ten or more legislative floor sessions called to transact business during a regular or special legislative session shall be deemed disorderly behavior and shall disqualify the member from holding office as a Senator or Representative for the term following the election after the member’s current term is completed.

Or. Const. art. IV, § 15. Shortly thereafter, the Oregon Senate promulgated rules to

implement and enforce the amendment. Senate Rule 3.10(1) provides, in relevant

part: “A member shall attend all sessions of the Senate unless excused by the

President. A request by a member to be excused from a session shall be in writing.

The President shall indicate approval or disapproval of the request in writing.”

For the first several months of 2023, Senate President Rob Wagner granted all

requests for excusal, including those from Senators Dennis Linthicum and Brian

Boquist. The Senators sought and received excusals for weather, home repairs,

family obligations, speaking engagements, medical procedures, and undisclosed

personal reasons.

4 But circumstances changed on May 3, 2023, when ten Senators—Senators

Linthicum and Boquist among them—staged a walkout. In written excusal requests

to Wagner, Senators Linthicum and Boquist explained that they were “protesting the

refusal of the Senate to comply” with certain Oregon laws and rules dealing with the

readability of legislative summaries. Wagner did not grant their excusal requests.

Two days later, Wagner “announced that requests for an excused absence[] on May 6

onward would be granted only in ‘extraordinary circumstances.’” He also “revised

prior approvals for absences on and following May 6, 2023, and reversed prior

approvals for absences due to a family event, a garden show, a family member[’]s

graduation, and to care for parents.” The record indicates that Wagner’s strict

enforcement of the absence policy applied to members of both parties.

The walkout lasted until late June 2023. During that period, Wagner granted

excusal requests from members for life-threatening medical circumstances, a

meeting with legislative staff regarding an ethics complaint, and a funeral. He also

excused Senator Boquist for two days when a water line burst at the Senator’s farm.

Wagner denied excusal requests from other Senators, including for visits to family,

family health issues, illness, a wedding, and a child’s high-school graduation. He

also denied repeated requests for excusals from Senators Linthicum and Boquist on

the basis of their protest.

5 All told, Senator Linthicum accrued thirty-two unexcused absences; Senator

Boquist accrued thirty. Each Senator had sought, and was denied, more than ten

excusals for protest-related reasons. On September 20, 2023, the Oregon Secretary

of State determined that Senators Linthicum and Boquist were ineligible to appear

on the ballot for the 2024 election because they had each accrued more than ten

unexcused absences.

The Senators filed suit under 42 U.S.C. § 1983 in the U.S. District Court for

the District of Oregon, alleging violations of the First and Fourteenth Amendments.1

They also moved for a preliminary injunction, seeking to enjoin the Secretary of

State from disqualifying them from the 2024 election. In their motion for

preliminary injunctive relief, the Senators made only a First Amendment retaliation

claim.

The district court denied the motion for a preliminary injunction. Most

relevantly, the court reasoned that under Nevada Commission on Ethics v. Carrigan,

564 U.S. 117 (2011), the First Amendment does not protect an exercise of official

legislative power—here, the “exercise of . . . official power . . . meant to deprive the

1 Five Senators, including Senator Linthicum, also brought a challenge in state court to the Secretary of State’s rules interpreting the amendment to Article IV, § 15. Those Senators argued that the new amendment disqualified them for the term after the next term of office. The Secretary’s rule disqualified the members for the next term after their absences. On February 1, 2024, the Oregon Supreme Court upheld the Secretary of State’s rule and decision to exclude the Senators from future ballots. See generally Knopp, 372 Or. 1.

6 legislature of the power to conduct business”—even if that exercise of power might

otherwise be characterized as expressive. The district court reasoned that “the use

of legislative walkouts is not constitutionally protected activity for purposes of the

Free Speech Clause of the First Amendment.” The court therefore concluded that

the Senators had not established a likelihood of success on the merits and were not

entitled to a preliminary injunction that would place them on the 2024 ballot.

The Senators timely appealed.

II. STANDARDS OF REVIEW

The Senators appeal the denial of a preliminary injunction, which we review

for abuse of discretion. Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023). “The

appropriate legal standard to analyze a preliminary injunction motion requires a

district court to determine whether a movant has established that (1) he is likely to

succeed on the merits of his claim, (2) he is likely to suffer irreparable harm absent

the preliminary injunction, (3) the balance of equities tips in his favor, and (4) a

preliminary injunction is in the public interest.” Id.; see also Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008).

This appeal principally concerns whether the Senators have established a

likelihood of success on the merits, which is the most important preliminary

injunction factor. See Edge v. City of Everett, 929 F.3d 657, 663 (9th Cir. 2019).

7 III. DISCUSSION

The Senators here mount a claim of First Amendment retaliation. “[T]he First

Amendment prohibits government officials from subjecting individuals to

‘retaliatory actions’ after the fact for having engaged in protected speech.” Houston

Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 (2022) (citation omitted). When an

elected official brings an action for First Amendment retaliation, he bears the burden

of proving that “(1) he engaged in constitutionally protected activity; (2) as a result,

he was subjected to adverse action by the defendant . . . ; and (3) there was a

substantial causal relationship between the constitutionally protected activity and the

adverse action.” Boquist v. Courtney, 32 F.4th 764, 775 (9th Cir. 2022) (citation

omitted). If the plaintiff official makes a prima facie showing, “the burden shifts to

the defendant official to demonstrate that even without the impetus to retaliate he

would have taken the action complained of.” Id. at 778 (citation omitted).

The Senators’ argument falters at the outset because they cannot show that

their walkout was constitutionally protected activity. We agree with the district

court that not attending legislative sessions—depriving a legislature of the quorum

required to consider legislative action (or risking that result)—is “an exercise of the

power of the legislator’s office” and therefore is not activity protected under the First

Amendment. In reaching that conclusion, the district court relied soundly on the

8 Supreme Court’s reasoning in Nevada Commission on Ethics v. Carrigan, 564 U.S.

117 (2011).

Carrigan involved a Nevada state law that prohibited legislators from voting

on legislative matters in which they were privately interested. Id. at 119–20. The

Supreme Court concluded that the rule did not run afoul of the First Amendment

because “a legislator has no right to use official powers for expressive purposes.”

Id. at 127. Voting in legislative meetings, the Court explained, is “the commitment

of [the legislator’s] apportioned share of the legislature’s power to the passage or

defeat of a particular proposal.” Id. at 125–26. Because “[t]he legislative power

thus committed is not personal to the legislator but belongs to the people,” id. at 126,

Nevada’s rule did not infringe any personal right of the legislators guaranteed by the

First Amendment. Even if legislative voting were expressive, and “even if the actor

would like it to convey his deeply held personal belief,” that fact “does not transform

action into First Amendment speech.” Id. at 127. The Court thus explicitly “rejected

the notion that the First Amendment confers a right to use governmental mechanics

to convey a message.” Id.

The Senators resist Carrigan’s application here, arguing the lack of First

Amendment protection recognized in that case extends only to a narrow concept of

legislative power, limited “specifically and narrowly to ‘procedures for voting in

legislative assemblies . . . .’” We disagree. Voting may be the quintessential

9 exercise of the legislator’s “apportioned share of the legislature’s power,” but it is

not the only one. Id. at 125. Under Carrigan, any official action in the legislature

that tends to “the passage or defeat of a particular proposal,” is properly understood

as a prerogative of membership in that body. Id. at 125–26. No private citizen

enjoys the privilege to advance or frustrate legislative action directly in the

legislature. The ability to stymie legislation by absenting oneself from a meeting of

the Oregon Senate belongs to Senators alone. The use of that power therefore

implicates the “governmental mechanics” of the legislative process, and Carrigan

makes clear that a legislator “has no right” under the First Amendment to use that

official power “for expressive purposes.” Id. at 127. The Senators attempt to claim

a personal First Amendment right to walk out, but Carrigan is clear that “[t]he

legislative power thus committed is not personal to the legislator but belongs to the

people; the legislator has no personal right to it.” Id. at 126. We accordingly reject

the Senators’ claim that their walkout is anything other than an exercise of legislative

power.2

2 The Senators also appear to argue that Carrigan does not apply by distinguishing between affirmative actions, such as “considering and voting upon bills,” and negative actions, such as “walking out to deny a majority or a quorum.” The Senators claim the former are legislative while the latter are not. This distinction is unpersuasive. First, it ignores the fact that a vote can itself be negative; a “no” vote does not make law but attempts to prevent law from being made. Second, as explained above, the Carrigan Court defined legislative power much more broadly, including all governmental acts that aid “the passage or defeat of a particular proposal.” Id. at 125–26 (emphasis added).

10 Carrigan also instructs us that history can be relevant to determining whether

certain activity is protected by the First Amendment. “[A] universal and long-

established tradition of prohibiting certain conduct creates a strong presumption that

the prohibition is constitutional . . . .” See id. at 122 (alteration in original) (quoting

Republican Party of Minn. v. White, 536 U.S. 765, 785 (2002)). In concluding that

Nevada’s law passed constitutional muster, Carrigan relied on the fact that “such

rules have been commonplace for over 200 years.” Id.; see also id. at 133 (Alito, J.,

concurring in part and concurring in the judgment).

In this case, the historical tradition of legislatures retaining the power to

physically compel absent members to attend legislative sessions bolsters our

conclusion that the Senators’ walkout is not protected First Amendment expression.

At the federal level, the Constitution sets a majority of the members of each house

of Congress as a quorum and authorizes each house “to compel the Attendance of

absent Members, in such Manner, and under such Penalties as each House may

provide.” U.S. Const. art. I, § 5, cl. 1. Each house also has the power to “punish its

Members for disorderly Behaviour . . . .” Id. art. I, § 5, cl. 2. In fact, the Supreme

Court has long upheld the power of each house of Congress to imprison its members

to compel their presence:

As we have already said, the Constitution expressly empowers each House to punish its own members for disorderly behavior. We see no reason to doubt that this punishment may in a proper case be

11 imprisonment, and that it may be for refusal to obey some rule on that subject made by the House for the preservation of order. So, also, the penalty which each House is authorized to inflict in order to compel the attendance of absent members may be imprisonment, and this may be for a violation of some order or standing rule on that subject.

Kilbourn v. Thompson, 103 U.S. 168, 189–90 (1880). Today, House Rule XX

provides that a majority of at least fifteen members “may order the Sergeant-at-Arms

to send officers appointed by the Sergeant-at-Arms to arrest those Members for

whom no sufficient excuse is made and shall secure and retain their attendance.”

House Rule XX, cl. 5(b). The Senate’s rules are comparable. See Senate Rule VI,

cl. 4. Each house may exercise its powers under these rules to compel the attendance

of absent members. Oregon’s Constitution contains a similar provisions. See Or.

Const. art. IV, § 12. Although the provision we consider in Article IV, § 15 of the

Oregon Constitution involves a different incentive for legislative attendance—the

threat of disqualification—the historical tradition of the compulsion power confirms

that legislators have no underlying personal First Amendment right not to be present

in the legislature for official legislative business. See Carrigan, 564 U.S. at 122.

Our decision in Boquist v. Courtney, 32 F.4th 764 (9th Cir. 2022) does not

direct a different result here. In Boquist, we concluded that a district court erred in

dismissing a claim brought by Senator Boquist—who is also a plaintiff in this case—

challenging an Oregon Senate Special Committee policy, adopted by those in the

opposite political party, which required that Boquist provide 12 hours’ advance

12 notice of his intent to enter the State Capitol. Id. at 772–73. This rule was imposed

after Boquist made statements on the Senate floor and to a reporter, statements that

other Senators claimed were threatening. Id. at 773. We held that the complaint

raised “a plausible inference” that Senator Boquist’s statements were protected

speech. Id. at 780.

Boquist was a very different case. Senator Boquist there was not exercising

the “legislative power” as Carrigan conceived it; he was making statements,

including to a reporter, not engaging in a “governmental act.” Carrigan, 564 U.S.

at 128. Indeed, Carrigan drew a distinction between the First Amendment’s lack of

protection for a legislator engaging in “a governmental act” or using “governmental

mechanics” of the legislative process, and the personal rights of legislators to engage

in speech. Id. at 127. As Carrigan noted, “[a] legislator voting on a bill is not fairly

analogized to one simply discussing that bill or expressing an opinion for or against

it. The former is performing a governmental act as a representative of his

constituents; only the latter is exercising personal First Amendment rights.” Id. at

128 n.5 (internal citation omitted).3

3 We also note that the 12-hour notice rule at issue in Boquist, which “bar[red] an elected official from the legislative chamber,” was both historically unsupported and directly contrary to the effect of the Oregon rule here, which seeks to incentivize legislators to be present for legislative sessions. 32 F.4th at 782. This case is further unlike Boquist because there is no indication in the record that the Senate President failed to excuse the Senators’ absences because of the content of their putative

13 We think, for the reasons already given, that the walkout here is more clearly

analogous to the voting in Carrigan than the personal speech at issue in Boquist. We

therefore hold that walkouts by legislators to deny a quorum to conduct business in

the legislature are exercises of legislative power not protected under the First

Amendment under the Supreme Court’s decision in Carrigan. We thus reject the

Senators’ claim and further hold that the First Amendment does not protect the

Senators from the application of Article IV, § 15 of the Oregon Constitution.

IV. CONCLUSION

We conclude that the Senators are unlikely to prevail on the merits of their

First Amendment retaliation claim. Although we need not proceed to analyze the

remaining preliminary injunction factors, it should be clear from the foregoing that

we perceive no legal or factual error in the district court’s analysis and therefore find

no abuse of discretion. We affirm the district court’s denial of a preliminary

injunction.

AFFIRMED.

expressive conduct. In fact, the Senate President declined to excuse most requests for absences from all Senators, regardless of party. Senators Boquist and Linthicum were the only Senators disqualified from running in the 2024 election, not because of their party affiliation or expression, but because they were the only Senators seeking re-election who accrued ten or more absences.

14 FILED FEB 29 2024 BYBEE, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Our per curiam opinion correctly explains why the Senators are unlikely to

succeed in asserting a First Amendment retaliation claim based on their inability to

use legislative office to further the expression of their personal views. I concur in

that opinion in full.

I write separately to respond to a distinct component of the Senators’ First

Amendment argument. In their briefs and at oral argument, the Senators claimed

that they were asserting only their personal right to free speech. That is, the Senators

claimed that they were seeking to vindicate only the same First Amendment rights

held by all citizens. See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“[P]ublic

employees do not surrender all their First Amendment rights by reason of their

employment.”); Huppert v. City of Pittsburg, 574 F.3d 696, 702 (9th Cir. 2009).

They disavowed claiming any First Amendment right to speak based on their status

as legislators. The reason for this strategic decision is obvious: Nevada Commission

on Ethics v. Carrigan, 564 U.S. 117 (2011), answers any claim to a special First

Amendment right to speak in a legislative capacity. The per curiam opinion fully

explains why any such claim fails under Carrigan. But because the Senators

invoked in no uncertain terms a personal right to protest, I feel obligated to explain

why the argument the Senators tried to make fails under the First Amendment. And in so doing, I endeavor to show why—despite their protestations—the Senators are

in truth asserting a legislative right.

I first describe why the First Amendment does not cabin the government’s

ability to burden speech incidentally in the pursuit of valid objectives. I then set out

why, even assuming there is some expressive value in the Senators’ walkouts,

Oregon’s disqualification-provision satisfies our precedents on content neutrality.

I

The freedom of speech protected by the First Amendment, although

colloquially denominated a right, is better characterized as a privilege or an

immunity.1 We enjoy a privilege to speak freely, including the privilege of

criticizing our elected officials, and the government has no right to suppress our

criticism. Stated alternatively, our speech is generally immune from government

regulation because the government is disabled by the First Amendment. The First

Amendment deprives the government of power to suppress our speech. “[W]e must

recall that the exact wording of the First Amendment—“Congress shall make no

law”—“precisely track[s] and invert[s] the exact wording of the Article I, section 8

necessary-and-proper clause: ‘Congress shall have power . . . to make all laws

which shall be necessary and proper . . . .’” Akhil Reed Amar, The Bill of Rights 39

1 The First Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, provides in relevant part: “[The States] shall make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I. 2 (1998); cf. Or. Const. art. I, § 8 (“No law shall be passed restraining the free

expression of opinion, or restricting the right to speak, write, or print freely on any

subject whatever; but every person shall be responsible for the abuse of the right.”).

If there is any question of the scope of the powers conferred on the legislature, the

First Amendment makes clear the power to abridge speech is affirmatively

withdrawn.2

The fact that we have a privilege to speak our minds freely does not confer an

unlimited and freewheeling immunity from the consequences of our speech. We do

not have the privilege of speaking “whenever and however and wherever [we]

please.” Menotti v. City of Seattle, 409 F.3d 1113, 1155 (9th Cir. 2005) (quoting

Greer v. Spock, 424 U.S. 828, 836 (1976)). For that reason, the First Amendment

does not withdraw from the government the ability to regulate conduct unrelated to

2 Our First Amendment privilege/immunity to speak our mind is subject to well- known exceptions. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”); Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been though to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words . . . .”). Those exceptions are content- based, but other efforts to suppress speech based on its content must run the gauntlet of strict scrutiny. Our freedom of speech is also subject to certain content-neutral restrictions related to time, place, and manner. See generally Ward v. Rock Against Racism, 491 U.S. 781 (1989). 3 the content of one’s expression, even if the regulation “has an incidental effect on

some speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989). When a law regulates “conduct itself” rather than “the message

conveyed by that conduct, the regulation is subject to the lesser scrutiny given to

content-neutral restrictions.” United States v. Swisher, 811 F.3d 299, 312 (9th Cir.

2016) (en banc).

Let’s take a simple example. A high school student who works at the drive-

through window at McDonald’s is not excused from work because she is at a

political rally. McDonald’s, which is not a state actor subject to the First

Amendment, may dismiss her even though she is engaged in constitutionally

protected activity. I know of no principle in First Amendment jurisprudence that

would shield state employees from similar consequences. If a public school teacher

fails to show up for class, she is not excused from work because she is attending the

same political rally as her student who works at McDonald’s. And it would not make

any difference if the rally was in support of better funding for public education, or if

the teacher was joined by thousands of other teachers, collectively exercising their

First Amendment rights. Public employees who fail to go to work have been subject

to injunctions, see San Diego Tchrs. Ass’n v. Superior Ct. of San Diego, 593 P.2d

838, 846–47 (Cal. 1979) (in bank) (recognizing the power of California’s Public

Employment Relations Board to enjoin teacher strikes); Sch. Dist. No. 351 Oneida

4 Cnty. v. Oneida Educ. Ass’n, 567 P.2d 830, 833 (Idaho 1977) (rejecting a

constitutional challenge to an injunction because public school teachers have no

right to strike), dismissal, see Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ.

Ass’n, 426 U.S. 482, 495–96 (1976) (affirming the states’ power to terminate

teachers who strike); Pro. Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 551–

552 (D.C. Cir. 1982) (discussing President Reagan’s decision to fire 11,000 striking

air traffic controllers), and even criminal prosecutions, see United States v. Taylor,

693 F.2d 919 (9th Cir. 1988) (upholding the convictions of traffic controllers under

18 U.S.C. § 1918, prohibiting strikes against the federal government). The First

Amendment does not excuse their absences. See Aircraft Serv. Int’l., Inc. v. Int’l.

Bhd. of Teamsters, AFL CIO Local 117, 742 F.3d 1110, 1122 (9th Cir. 2014) (“[W]e

have been unable to identify any case in the Supreme Court or any of the courts of

appeal invalidating a strike injunction . . . because of First Amendment concerns.

To the contrary, the Court has consistently found that actions inconsistent with

national labor laws are generally not protected by the First Amendment.”), on reh’g

en banc sub nom. Aircraft Serv. Int’l, Inc. v. Int’l Bhd. of Teamsters, 779 F.3d 1069

(9th Cir. 2015). The Senators have not offered any reason why they should be treated

differently from any other state employee; after all, the Senators themselves claim a

personal right, not a right derivative of their elected office. They have to show up

for work just like everyone else.

5 Notwithstanding these principles, the Senators doubled down at oral

argument, insisting that they were excused from any attendance-related rules created

by the Oregon Constitution or Oregon Senate because they were off exercising their

First Amendment rights. Here is where the Senators fundamentally misunderstand

the First Amendment. They argue that because they were exercising a free speech

right, they were excused from other rules. That is an argument that has been made

with respect to the Free Exercise Clause, one that remains controversial. Compare

Emp. Div., Dep’t of Hum Res. of Or. v. Smith, 494 U.S. 872, 878–79 (1990) (“We

have never held that an individual’s religious beliefs excuse him from compliance

with an otherwise valid law prohibiting conduct that the State is free to regulate.”)

with City of Boerne v. Flores, 521 U.S. 507, 546 (1997) (O’Connor, J., dissenting)

(advocating overruling Smith because “the [Free Exercise] Clause is best understood

as an affirmative guarantee of the right to participate in religious practices and

conduct with impermissible governmental interference, even when such conduct

conflicts with a neutral, generally applicable law”); see also Fulton v. City of

Philadelphia, 593 U.S. 522, 545 (2021) (Alito, J., concurring) (expressing the view

that Smith “is fundamentally wrong and should be corrected”). It is not a proposition

that can be sustained under the Free Speech Clause, at least not without showing

how the law suppresses constitutionally protected speech. See Virginia v. Hicks, 539

U.S. 113, 123 (2003) (noting that persons barred from a public forum may “not

6 return—regardless of whether, upon their return, they seek to engage in speech”);

IMDb.com Inc. v. Becerra, 962 F.3d 1111, 1120 (9th Cir. 2020) (“[A] law of general

applicability does not ‘offend the First Amendment simply because [its]

enforcement’ may have an ‘incidental effect[]’ on speech.” (second and third

alterations in original) (citation omitted)). The Senators have made an argument

more appropriate if they were trying to preserve their religious rights, rather than

their right to free speech.

In the end, the Senators resist these well-settled principles by noting that they

are elected officials, not employees. When they do so, they take themselves out of

the class of “citizens just like everyone else” and move themselves into the special

class of “citizens serving as legislators.” That is where Carrigan comes in.

Carrigan involved a Nevada law that required lawmakers to recuse themselves from

voting for legislation in which they had a personal interest. But more than that rule

was at issue in the case. Nevada’s law also precluded lawmakers from “advocat[ing]

the passage or failure” of any proposal from which they were recused. Carrigan,

564 U.S. at 122. The Supreme Court upheld this rule against a challenge based on

recused legislators’ personal First Amendment rights. A recused legislator, thus

stripped of his ability to vote on the passage of legislation, possesses no more speech

rights than any other private citizen. Consequently, although he retains a personal

right to comment on the proposed legislation generally, such speech is subject to

7 “reasonable time, place, and manner limitation[s].” Id. The Court took for granted

that one who does not have a right to vote in the legislature—whether a recused

legislator or an ordinary private citizen—may properly be excluded from speaking

at legislative sessions because the sessions “would become massive town-hall

meetings if those who had a right to speak were not limited to those who had a right

to vote.” Id. at 121. Carrigan thus stands for the proposition that a State may

incidentally burden the personal First Amendment rights of state legislators when

the exercise of such rights would disrupt the functioning of the legislature. The

Senators’ expressive walkout does not excuse them from the Oregon rules regarding

attendance at work.

II

Even if I thought that the Senators’ absences were protected expressive

conduct, they still could not prevail. Like the ethics rule at issue in Carrigan,

Oregon’s disqualification provision is facially content-neutral. 3 A content-neutral

law survives intermediate scrutiny so long as it is “narrowly tailored to serve a

significant governmental interest, and . . . leave[s] open ample alternative channels

for communication of the information.” Doe v. Harris, 772 F.3d 563, 576–77 (9th

Cir. 2014) (first alteration in original) (quoting Rock Against Racism, 491 U.S. at

3 As the per curiam opinion correctly points out, the record is devoid of any suggestion that Article IV, § 15 was applied in a discriminatory fashion based on the content of senators’ expression. 8 791). The Senators wisely do not contest Oregon’s considerable interest in ensuring

the sound functioning of the state legislature. They instead focus their challenge on

the narrow-tailoring prong. In particular, they argue that disqualification is more

speech-restrictive than necessary because the “Senate could have compelled the

return of absent members . . . under Or. Const. art. IV, § 12 (Oregon’s ‘compulsion

of attendance’ provision), but chose not to.”

The Senators misapprehend structural constitutional principles in general and

First Amendment narrow-tailoring analysis in particular. I address each in turn.

A

The power of States to devise content-neutral rules is at its apex when

choosing how to organize their public institutions. A fundamental precept of our

constitutional design is that “States retain broad autonomy in structuring their

governments . . . .” Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 543 (2013).

Oregon’s Constitution parallels the U.S. Constitution in authorizing legislators to

compel the attendance of absent members. See Or. Const. art. IV, § 12; U.S. Const.

art. I, § 5, cl. 1. The Senators’ argument, in essence, asks us to impose on all States

the federal mechanism by which our national Congress ensures a quorum. To be

sure, Congress’s extant attendance rules have worked relatively well. Because a

simple majority is often sufficient to pass legislation, see U.S. Const. art. I, § 5, cl. 1,

member absence rarely frustrates legislative business.

9 But the design of our national Congress is not the only way to constitute a

legislature. Most states define a quorum as a majority of members, but four states—

including Oregon—require two-thirds of total members. See Ballotpedia,

Noteworthy State Legislative Walkouts (last accessed Feb. 12, 2024),

https://perma.cc/ZX8Z-9MFW. Even among states that generally require only a

majority of members for a quorum, some impose a supermajority requirement when

voting on certain pieces of legislation. See, e.g., Del. Const. art. II, § 19, cl. 1; Nev.

Const. art. 4, § 18.2. These variations at times create problems unique to a state’s

legislative design. In Oregon’s case, the combination of the supermajority quorum

requirement and a part-time legislative session makes walkouts peculiarly

disruptive. As the district court found, the compelled-attendance provision

notwithstanding, Oregon’s “legislature has been intermittently paralyzed by

walkouts.”

Oregon voters recognized the need to secure the attendance of legislators with

new incentives. They thus turned to a potent tool of direct democracy—the

constitutional initiative—to address a problem that strikes at the heart of its

representative democracy: the failure of its legislature to legislate. Or. Const.

art. IV, § 1 (“reserv[ing] to the people” the right to legislate through initiative and

referendum). The initiative’s “invention . . . was in full harmony with the

Constitution’s conception of the people as the font of government power.” Ariz.

10 State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 819 (2015).

Oregon in particular has a venerable history of direct democracy. It was “the first

State to adopt the initiative as a means, not only to enact ordinary laws, but also to

amend the State’s Constitution.” Id. at 794. Oregon has used the initiative nearly

four-hundred times in the last century, the highest among all states in the Union.

Jeffrey S. Sutton, Who Decides? 354 (2022). It is the people’s work-around to a

recalcitrant legislature. The alacrity and ability of Oregon’s citizens to amend their

own state constitution is a hallmark of our tradition of representative democracy.

“Constitutions say who is in charge. Amendments remind politicians that it is not

them. The capacity to change a constitution respects a truth in any democracy, that

the people hold the ultimate reins on power.” Id. at 333. Measure 113 is the

federalist system in action.

To be sure, the Senators’ primary complaint is with Oregon’s chosen

mechanism—disqualification—rather than the notion that States might recur to other

processes by which they can secure a quorum. But a state’s power to regulate the

qualifications for state office “is a decision of the most fundamental sort for a

sovereign entity.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The Supreme

Court has reiterated as “obviously essential to the independence of the States, and to

their peace and tranquility, that their power to prescribe the qualifications of their

own officers . . . should be exclusive, and free from external interference, except so

11 far as plainly provided by the Constitution of the United States.” Id. (quoting Taylor

v. Beckham, 178 U.S. 548, 570–71 (1900)).

This is not merely an academic detour. These federalism principles reify

Oregon’s significant interest in securing the sound functioning of its legislature.

They are also instructive in the narrow-tailoring analysis below. Although the

Constitution is doubtlessly an outer limit on the States’ authority to establish

qualifications for their own legislators, “our scrutiny will not be so demanding where

we deal with matters resting firmly within a State’s constitutional prerogatives.” Id.

at 462 (citation omitted); accord Shooter v. Arizona, 4 F.4th 955, 963 (9th Cir. 2021).

“This rule ‘is no more than . . . a recognition of a State’s constitutional responsibility

for the establishment and operation of its own government, as well as the

qualifications of an appropriately designated class of public office holders.’”

Gregory, 501 U.S. at 462 (alteration in original) (citation omitted).

B

With those guiding principles in mind, I turn now to the narrow-tailoring

prong of our precedents on content neutrality. Importantly, we do not require a

content-neutral regulation to be “the least speech-restrictive means of advancing the

Government’s interests.” Doe, 772 F.3d at 577 (citation omitted). Instead, “the test

is whether the means chosen . . . burden[s] substantially more speech than is

12 necessary to further the government’s legitimate interests.” Id. (alterations in

original) (citation and quotation marks omitted).

Application to the Senators of Article IV, § 15 does not burden substantially

more speech than necessary, for at least two reasons. First, disqualification leaves

open the most important channels of expression. During the session, the Senators

could have exercised their right under the Oregon Constitution, as legislators, “to

protest, and have [their] protest, with [their] reasons for dissent, entered on the

journal [of the Senate].” Or. Const. art. IV, § 26. They could have spoken to

reporters or their constituents any time they were not required to be in session. They

could have issued a press release. The possibilities are endless, so long as they are

physically present when required by the Oregon Constitution. Whatever additional

expressive value the Senators find in a walkout is beside the point, because “[t]he

guarantees of the First Amendment have never meant that people who want to

propagandize protests or views have a constitutional right to do so whenever and

however and wherever they please.” Menotti, 409 F.3d at 1155 (quoting Greer, 424

U.S. at 836). Even setting those alternatives aside, Oregon’s Constitution does not

invariably foreclose the Senators’ preferred mode of expression; the Senators could

have walked out in protest nine times before facing disqualification.

Second, other compulsion-of-attendance procedures—which the Senators

concede would not violate the First Amendment—are, at least to my mind, more

13 speech restrictive than disqualification. Physically compelling the presence of the

Senators would necessarily terminate the very walkout that the Senators claim is

protected. The Senators also concede that Oregon could imprison them for their

absence as a punishment, not merely as a corrective mechanism to achieve their

attendance. See Kilbourn v. Thompson, 103 U.S. 168, 189–90 (1880). If Oregon

may lawfully imprison absent lawmakers as punishment, it may, a fortiori, impose

the less restrictive civil disability of disqualification. Disqualification from re-

election comes with no additional penalties; as citizens, the former senators retain

all of their First Amendment rights to criticize the Oregon Legislative Assembly.

The Senators nevertheless press that disqualification is more speech-restrictive than

imprisonment because it prospectively forecloses their direct access to the legislative

forum. But the First Amendment grants them no unqualified entitlement to their

office. And, for the reasons explained in our per curiam opinion, any expressive

conduct available only by dint of their office is not protected by the First

Amendment.

III

For the foregoing reasons, I conclude that the Senators’ claim that their

personal right to protest shields them from disqualification under Article IV, § 15 of

the Oregon Constitution is unlikely to succeed on the merits. Although these

arguments were ultimately meritless, I feel the parties deserve due consideration of

14 each of their claims. For the reasons expressed in our per curiam opinion and in this

concurrence, I join the panel in concluding that the district court did not abuse its

discretion in denying the Senators’ motion for a preliminary injunction.

15 FILED Linthicum v. Wagner, 23-4292 FEB 29 2024 MOLLY C. DWYER, CLERK BRESS, Circuit Judge, concurring: U.S. COURT OF APPEALS

Today’s per curiam opinion correctly and sufficiently resolves this case under

Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011). Carrigan is clear

that legislators have no First Amendment speech rights in a “governmental act” that

constitutes part of the exercise of “legislative power.” Id. at 126, 128. Applying

that rule of law to a state legislator’s claimed First Amendment right to vote over

and above a Nevada conflict-of-interest recusal rule, the Supreme Court in Carrigan

concluded that “[e]ven if it were true that the vote itself could ‘express deeply held

and highly unpopular views,’ the argument would still miss the mark” because

“[t]his Court has rejected the notion that the First Amendment confers a right to use

governmental mechanics to convey a message.” Id. at 127 (citation omitted). Thus,

“a legislator has no right to use official powers for expressive purposes.” Id.

Carrigan answers this case because the Senators here claim a First

Amendment right not to attend legislative sessions where their non-attendance either

precludes a legislative quorum or threatens that result. Even if this act could have

expressive connotations, as in Carrigan, it is a “governmental act” that is part of the

exercise of “legislative power”—the attempted “use [of] governmental mechanics to

convey a message,” for which the Senators receive no First Amendment protection.

Id. at 126–28.

1 In addition, like in Carrigan, a substantial historical tradition supports the

conclusion that the Senators here have no underlying First Amendment right to their

claimed expression. In Carrigan, that history consisted of long-accepted legislative

recusal rules. See id. at 122–24. Here, as the per curiam opinion describes, we have

a long and constitutionally enshrined history of rules allowing legislatures to compel

the attendance of absent members. That legislators can be compelled to return to the

seat of power, even to the point of imprisonment, shows they have no personal First

Amendment right to be absent.

Judge Bybee’s separate concurring opinion goes considerably further,

believing that more analysis is needed to show that the Senators’ personal right to

free speech was not infringed. That journey into uncharted First Amendment waters

is unnecessary and rests on an incomplete understanding of Carrigan. The Senators’

asserted personal right here is inconsistent with Carrigan, which makes clear that

“[t]he legislative power thus committed is not personal to the legislator but belongs

to the people.” Id. at 126. Judge Bybee’s concurring opinion thus engages with a

hypothetical personal right that the Supreme Court has said does not exist.

In the process, that concurrence takes a broader view of the ability of states to

curtail what it assumes would be state legislators’ otherwise protected speech. The

concurrence states that Carrigan “stands for the proposition that a State may

incidentally burden the personal First Amendment rights of state legislators when

2 the exercise of such rights would disrupt the functioning of the legislature.” But

Carrigan does not support that far-reaching proposition. Carrigan holds that certain

acts which are governmental in nature and inhere in the “legislative power” are not

among the personal rights of individual legislators, so that legislators have no

personal First Amendment claim to them. Carrigan is not about the permissible

burdening of personal First Amendment rights, but about whether there are such

rights in the first place (making clear that for official legislative acts, there are not).

The Nevada recusal rule in Carrigan did also prevent any legislator with a

conflict of interest in the proposal from “advocat[ing] the passage or failure” of that

initiative, which Carrigan regarded as a permissible time, place, and manner

restriction. Id. at 121–22. But on this point, the Supreme Court was careful to treat

the prohibition on advocacy of a legislative proposal as “evidently meaning

advocating its passage or failure during the legislative debate.” Id. at 121 (emphasis

added). With that cabined understanding, Carrigan had little difficulty concluding

that such a restriction was permissible: “[l]egislative sessions would become

massive town-hall meetings if those who had a right to speak were not limited to

those who had a right to vote.” Id.; see also id. (“Neither Carrigan nor any of his

amici contend that the prohibition on advocating can be unconstitutional if the

prohibition on voting is not.”).

But to say that someone without a vote cannot participate in formal legislative

3 debates is a far more straightforward constitutional issue than the one Judge Bybee’s

concurrence poses and then endeavors to answer, which involves the application of

First Amendment scrutiny to a state constitutional amendment that in this case

results in Senators being disqualified from office for acts of political protest. Under

Carrigan, there is no need to engage with this more involved question because

legislators have no First Amendment right to deprive their legislature of a quorum,

however expressive this act of protest may be. But if one is to go ahead and

(unnecessarily) assume the existence of a counter-Carrigan personal First

Amendment right, as Judge Bybee’s concurrence does, I think the matter would

require more consideration than the concurrence lets on.

Emphasizing principles of federalism and deference to state processes

announced in cases outside the First Amendment context, the concurrence relies

heavily on “Oregon’s considerable interest in ensuring the sound functioning of the

state legislature,” as well as the state’s related interest in avoiding the disruption of

the legislative process. These interests are stated at a very high level. The

concurrence also compares state legislators to other public employees, such as air

traffic controllers, and finds Oregon’s approach narrowly tailored because the

Senators have other avenues of communication. I question whether this analysis

appropriately accounts for the real risks attendant to actual speech restrictions of

legislators. If we were truly dealing with a personal First Amendment right (again,

4 we are not), more scrutiny would be warranted. We do not accept the argument that

ensuring the “sound functioning” of society justifies the suppression of unpopular

views. The “sound functioning of the state legislature” should provide no greater

justification for unlawful restrictions on speech, especially political speech that the

First Amendment so highly values.

The fear that legislative processes could inflict First Amendment harm on

legislators is not merely hypothetical. Our recent decision in Boquist v. Courtney,

32 F.4th 764 (9th Cir. 2022) allowed an Oregon state Senator’s First Amendment

claim to proceed because he plausibly alleged First Amendment retaliation for

political speech made in a legislative context. As today’s per curiam notes, the

Supreme Court in Carrigan was careful to distinguish between a legislator

performing a legislative act and a legislator engaging in political speech in a

legislative setting: “A legislator voting on a bill is not fairly analogized to one simply

discussing that bill or expressing an opinion for or against it. The former is

performing a governmental act as a representative of his constituents; only the latter

is exercising personal First Amendment rights.” Carrigan, 564 U.S. at 128 n.5

(internal citation omitted).

It is this critical distinction from Carrigan between official legislative acts

and personal speech that drives the resolution of this case. Broader suggestions that

otherwise protected legislator speech may be suppressed under more forgiving

5 standards to ensure a better functioning legislature raise much more difficult

questions. We had no need to tackle those issues because under Carrigan, no

personal First Amendment right is implicated here. That is why the per curiam

opinion correctly and appropriately stops where it does.