First Amendment no shield from ‘give-and-take’ of political process

Wednesday, June 16, 2010

A former school board member in Washington state has no valid First Amendment claim even though fellow school board members removed him as vice president for his dissenting comments. A federal appeals court reasoned in a June 14 ruling that “the First Amendment doesn’t shield public figures from the give-and-take of the political process.”

Ken Blair served as a school board member for the Bethel School District from 1999 until his failed re-election bid in 2009. He served in different positions on the board, including president, vice president and legislative representative.

Blair consistently opposed Tom Siegel, the school superintendent since 2000. In September 2007, the school board voted 4-1 to renew Siegel’s contract and award him a pay raise. Blair was the lone dissenter. The next day he told a newspaper reporter: “My biggest issue with the superintendent is trust. … I have too many examples to say he’s doing a good job.”

The next month, Blair’s fellow board members removed him as vice president, though he remained on the board. Blair then sued the Bethel School District, Siegel and the other school board members, alleging that they had violated his First Amendment freedoms of speech and petition.

In October 2008, U.S. District Judge Franklin Burgess dismissed Blair’s constitutional claim. “The First Amendment is not intended to shield politicians from the political process,” Burgess wrote.

Blair then appealed to the 9th U.S. Circuit Court of Appeals, which affirmed the lower court in its opinion in Blair v. Bethel School District, writing: “we expect political officials to cast votes in internal elections in a manner that is … retaliatory.” The unanimous three-judge panel emphasized that this was not a “typical First Amendment retaliation case.”

The panel reasoned that “the prototypical plaintiff” in a public-employee case is a government worker who loses his or her job for critical speech. “Blair has little in common with these prototypical plaintiffs,” the appeals court wrote, adding that “more is fair in electoral politics than in other contexts.”

The appeals court drew an analogy between voting by the public and voting by school board members: “It wouldn’t have been controversial — and certainly not a violation of the First Amendment — had Blair’s constituents refused to support his reelection on account of his outspoken opposition to Superintendent Siegel. We see no reason the Board members’ vote here should be regulated in a way that the general public’s are not.”

The panel concluded that while Blair had a First Amendment right to criticize the voting of the board, the other board members had a similar right to replace him “with someone who, in their view, represented the majority view of the Board.”

The appellate judges also echoed Judge Burgess’ point about politicians’ not being shielded from politics.

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