Public University Committee Members' Names Aren't Protected by the Right of Expressive Association

From Sullivan v. Univ. of Washington, decided today by the Ninth Circuit (Judge Sandra Ikuta, joined by Judge Daniel Collins and District Judge Sidney Fitzwater [N.D. Tex.]):

Appointees to a university committee created to satisfy federal legal requirements [related to animal welfare in research] sought to enjoin the university from releasing the letters appointing them to the official committee. {People for the Ethical Treatment of Animals (PETA), an organization opposed to the use of animals in research, [had] filed a public records request with the University pursuant to Washington's Public Records Act (PRA).} The appointees claimed that the disclosure of such letters, which contain their personal identifying information {such as names, email addresses, office addresses, and work affiliations}, would violate their First Amendment right of expressive association.

The district court held that there was a serious question on the merits of that argument and preliminarily enjoined the disclosure. We disagree. The committee members' performance of their official duties is not protected by the First Amendment right of expressive association, and so the disclosure of public records that relate to performance of such duties does not impinge on that right….

The [Supreme] Court has recognized that "[a]n individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed." … This constitutional right of expressive association may be infringed by compelled "disclosure of the fact of membership in a group seeking anonymity," because the "[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs."

Not all groups, however, are entitled to this First Amendment protection; it can be invoked only by those groups actually engaged in expressive association. Individuals engage in expressive association when they join with others to pursue "a wide variety of political, religious, cultural, or social purposes," including the advocacy of both public and private points of view, the advancement of beliefs and ideas, and the transmission of "a system of values." Members involved in such endeavors are generally protected in expressing the "views that brought them together." …

The facts of this case preclude the Committee members' argument that disclosure of their letters of appointment pursuant to the PRA impermissibly impinges on the sort of expressive association that the First Amendment protects. The letters of appointment exist (and are part of the University's public records) only because the Committee members were appointed by the University according to statutory and regulatory criteria to ensure diverse representation. Their "group association" as Committee members is not intended to enhance effective advocacy of their views or "to pursue their lawful private interests," but rather to fulfill federal requirements. The Committee is not akin to a private association where members choose their own purposes and decide how to advance them; here, federal law prescribes both the Committee's purpose and its functions. Because, in performing their work on the Committee, the members are not engaged in an association deemed to be "expressive" under Supreme Court or our precedent, the First Amendment right of expressive association does not protect them from the University's disclosure of personal identifying information contained in their letters of appointment.

Our conclusion that a committee formed by the government to discharge an official purpose is not engaged in expressive association is consistent with cases holding that the First Amendment does not protect the speech of public employees speaking "pursuant to their official duties." Garcetti v. Ceballos (2006). Under Garcetti, only "when an employee speaks as a citizen addressing a matter of public concern" do the Supreme Court's "cases indicate that the First Amendment may be implicated." The rationale behind this approach is that the government "may impose certain restraints on the speech of its employees" that would be "unconstitutional if applied to the general public," because "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." … [T]he rules governing public employee speech also apply to government volunteers, as well as independent government contractors and business vendors.

Here, the Supreme Court's jurisprudence governing public employee speech points to the same conclusion as its jurisprudence governing expressive association. The right of expressive association protects the sort of collective efforts that would be protected by the First Amendment if pursued on an individual basis. But here the Committee members are analogous to government volunteers or contractors because they were appointed by the University to serve its public function. And because an individual member's committee work (such as the preparation and issuance of inspection certification reports) falls within the scope of the member's official duties, that work is unprotected public employee speech. Therefore, because the Committee members' work is unprotected by the First Amendment on an individual basis, their collective work on the Committee is likewise unprotected.

Accordingly, because the Committee members' association is pursuant to their official duties and not any private expressive activities, it is not protected by the First Amendment right of expressive association. The Committee members may be engaged as individuals in other activities that are expressive in nature. But the letters of appointment relate to the Committee members' service on an official committee, and such an activity is not protected by the right of expressive association. Therefore, the University's disclosure of the Committee members' letters of appointment pursuant to the PRA would not impermissibly burden any First Amendment right of expressive association. Because the district court made a legal error in concluding that, by serving on the Committee, the members were thereby engaged in that First Amendment protected activity, it abused its discretion.

{The Committee members argue that the First Amendment doctrines governing public employee speech do not apply "to teaching and academic writing that are performed pursuant to the official duties of a teacher and professor," Demers v. Austin (9th Cir. 2014), and therefore their work for a university is entitled to First Amendment protection. We reject this argument. Demers is inapplicable here because, in performing the official work of the Committee, the members are not thereby engaged in "teaching and academic writing."}

{Because we conclude that the members' association is not protected by the First Amendment right to expressive association, we do not address PETA's arguments as to whether there is a reasonable probability that the Committee members will be subject to constitutionally significant threats or harassment if their identities become known.}

Judge Fitzwater concurred:

The panel opinion does not address PETA's arguments about whether there is a reasonable probability that Committee members will be subject to constitutionally significant threats or harassment if their identities become known, because the opinion correctly concludes that the members' association is not protected by the First Amendment right to expressive association. But as the panel opinion also recognizes, except for the Committee chair and the lead veterinarian, who have made their identities known, all other Committee members "prefer to remain anonymous because of concerns about their personal safety and the safety of their families and pets if their names are released."

When it comes to organizations like PETA, these concerns may be well-founded. See, e.g., Richard L. Cupp, Jr., Considering the Private Animal and Damages, 98 Wash. U. L. Rev. 1313, 1340 (2021) (PETA "is open about using 'controversial tactics' to gain media attention"). Nothing in the panel opinion, however, holds that the State of Washington is obligated through its Public Records Act to require disclosures of personal information that may subject Committee members and their families and pets to threats to their personal safety. As the panel opinion notes, the Act's disclosure requirements are already subject to a wide range of statutory exemptions. The State of Washington retains the authority to adopt other exemptions aimed at curbing required disclosures of personal information that could place at risk members of committees such as this one, or their families or property. Nothing in the panel opinion holds to the contrary.

Congratulations to Peter D. Hawkes (Angeli Law Group LLC), who represented PETA.