This chapter is being reviewed in light of comments solicited by the Committee from the public.
9.10 PARTICULAR RIGHTS—FIRST AMENDMENT—"CITIZEN" PLAINTIFF
As previously explained, the plaintiff has the burden to prove that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].
Under the First Amendment, a citizen has the right [to free expression] [to petition the government] [to access the courts] [other]. In order to prove the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:
1. the plaintiff engaged in [speech] [other specified conduct] protected under the First Amendment;
2. the defendant took action against the plaintiff; and
3. [the plaintiff’s protected [speech] [conduct]] [chilling the plaintiff’s protected speech] was a substantial or motivating factor for the defendant’s action.
[I instruct you that plaintiff’s [speech in this case about [specify]] [specify conduct] was protected under the First Amendment and, therefore, the first element requires no proof.]
A substantial or motivating factor is a significant factor.
Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and when the plaintiff is a private citizen. Use Instruction 9.9 (Particular Rights—First Amendment—Public Employees—Speech) when the plaintiff is a public employee. Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law. See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir.2009).
Under the First Amendment to the United States Constitution, a citizen has the right to be free from governmental action taken to retaliate against the citizen’s exercise of First Amendment rights or to deter the citizen from exercising those rights in the future. Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir.1994). "Although officials may constitutionally impose time, place, and manner restrictions on political expression carried out on sidewalks and median strips, they may not ‘discriminate in the regulation of expression on the basis of content of that expression.’ State action designed to retaliate against and chill political expression strikes at the very heart of the First Amendment." Id. (citations omitted).
Thus, in order to demonstrate a First Amendment violation, a citizen plaintiff must provide evidence showing that "by his actions [the defendant] deterred or chilled [the plaintiff’s] political speech and such deterrence was a substantial or motivating factor in [the defendant’s] conduct." Id. (quoting Mendocino Env’l Ctr. v. Mendocino County, 14 F.3d 457, 459–60 (9th Cir.1994). A plaintiff need not prove, however,that "his speech was actually inhibited or suppressed." Mendocino Env’l Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1288 (9th Cir.1999). See also Awabdy v. City of Adelanto, 368 F.3d 1062, 1071 (9th Cir.2004).
In determining whether the First Amendment protects student speech in a public school, it is error to use the "public concern" standard applicable to actions brought by governmental employees. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 759 (9th Cir.2006). Instead, the proper standard to apply to student speech is set forth in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969). Pinard at 759. See also Corales v. Bennett, 567 F.3d 554, 562-68 (9th Cir.2009).
"A speech restriction cannot satisfy the time, place, manner test if the restriction does not contain clear standards." OSU Student Alliance v. Ray, 699 F.3d 1053, 1066 (9th Cir.2012); see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988) ("The absence of express standards makes it difficult to distinguish, ‘as applied,’ between a licensor’s legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech.").