Tachias v. Sanders

Appellate Case: 22-2139 Document: 48-1 Date Filed: 03/10/2025 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 10, 2025

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

ROWENA TACHIAS; MONIQUE

DERETA,

Plaintiffs - Appellees,

v. No. 22-2139

DANA SANDERS, in her individual

capacity,

Defendant - Appellant,

and

LOS LUNAS SCHOOLS BOARD OF

EDUCATION,

Defendant.

_________________________________

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. 1:21-CV-00085-MIS-JFR)

_________________________________

Carlos M. Quiñones, Quiñones Law Firm LLC, Santa Fe, New Mexico, for Defendant-

Appellant.

Matthew M. Beck (Leon Howard III, American Civil Liberties Union of New Mexico

Foundation, with him on the brief), Peifer, Hanson, Mullins & Baker, P.A., Albuquerque,

New Mexico, for the Plaintiff-Appellees.

_________________________________

Before MATHESON, BACHARACH, and EID, Circuit Judges.

_________________________________

Appellate Case: 22-2139 Document: 48-1 Date Filed: 03/10/2025 Page: 2

EID, Circuit Judge.

_________________________________

Appellant Dana Sanders was the Superintendent of the Los Lunas, New

Mexico Public Schools when Rowena Tachias and Monique Dereta (“the Appellees”)

created a Facebook page titled the “Los Lunas School District Parent Discussion

Page” and used it to publicly discuss school-related matters online. Sometime after

the page’s creation, Sanders learned of the page and felt that it was problematic for

the school district. Sanders then undertook a series of actions, including

investigating the page, discussing it with numerous people, filing a trademark for the

name of the school district, and eventually issuing “cease and desist” letters

demanding that the Appellees delete the page. The cease-and-desist letters––which

threatened future litigation if the Appellees did not comply––alarmed the Appellees,

who felt that their First Amendment rights were being stifled.

The Appellees decided to sue Sanders and the Los Lunas School Board under

42 U.S.C. § 1983, alleging that Sanders violated their First Amendment rights by

threatening frivolous legal action against them in retaliation for their speech.

Sanders alone, in her individual capacity, asserted qualified immunity against this

First Amendment retaliation claim and moved for summary judgment. The district

court denied Sanders’s motion and held that she was not entitled to qualified

immunity. This interlocutory appeal followed.

Reviewing de novo, we agree with the district court that Sanders is not entitled

to qualified immunity on the Appellees’ § 1983 claim. To defeat Sanders’s claim of

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qualified immunity, the Appellees had to show, from the undisputed facts, two

things: (1) that Sanders’s conduct violated the Appellees’ constitutional rights, and

(2) that the constitutional right was “clearly established” at the time of Sanders’s

conduct.

The district court determined both that a constitutional violation occurred and

that the violation was clearly established under existing Tenth Circuit precedent at

the time of Sanders’s conduct. In so concluding, the district court reasoned that

Sanders’s threatened lawsuit was retaliatory, speech-chilling, and legally frivolous,

such that it violated the Appellees’ First Amendment rights.

We first hold that, due to inadequate briefing on appeal, Sanders has waived

any challenge to the denial of qualified immunity based on the first prong—that a

constitutional violation occurred. On the second prong, we hold that the facts in this

case are “materially similar” to those in a prior opinion of this Circuit, Beedle v.

Wilson, 422 F.3d 1059 (10th Cir. 2005), and therefore Sanders’s actions violated

clearly established law. Specifically, we hold that it was clearly established at the

time of Sanders’s conduct that government actors violate the First Amendment when

they threaten frivolous legal actions in retaliation for a person’s constitutionally

protected speech. We therefore affirm the district court’s denial of Sanders’s motion

for summary judgment.

I.

In February 2011, the Appellees created a non-commercial Facebook page

titled the “Los Lunas School District Parent Discussion Page.” ROA at 10. As the

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administrators of that page, they had editorial control over what content appeared on

it. Discussing Los Lunas public schools was of personal interest to the Appellees

because, at that time, they both had children or grandchildren enrolled in the schools.

The page’s content came entirely from either the Appellees’ own posts or user-

submitted posts that the Appellees approved for publication. All administrator-

approved posts, regardless of authorship, could then be commented on by page

members.

Sanders eventually became aware of the page around the summer of 2018––

more than seven years after the Appellees created it. The page initially came to her

attention because “parents and community members complained about” it. Id. at 11.

These complaints generally suggested that the page was causing confusion among

members of the public about various matters related to the Los Lunas public schools,

such as “snow day” information. Also of concern to at least some parents and

community members was the fact that certain posts on the page criticized specific,

identifiable people. For example, one post cast the principal of Valencia Middle

School, a Los Lunas public school, in a poor light.

Soon after Sanders learned about the Facebook page, she began applying for a

trademark for the phrase “Los Lunas Schools.” She believed that a trademark would

help her control the use of the name of the Los Lunas Public Schools. Around that

same time, Sanders expressed her concern about the content of the Facebook page to

members of the School Board. She texted Board members that, in her view, the

page’s content was “totally out of control.” Id. at 13. Sanders also told the Board

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that she had asked the school district’s attorney to investigate the matter because, at

the very least, she wanted certain content (such as the post maligning the Valencia

Middle School principal) removed from the Facebook page. Finally, Sanders notified

the Board that she had begun the process of applying for the trademark.

Sanders kept following the Facebook page throughout October 2018 and

offered regular updates to the Board about it. In one such update, Sanders included

special text in a unique font that described the Facebook page as “THE HATERS

PAGE,” which Sanders claimed was a name that “many have labeled it.” Id. at 14.

Sanders’s concern with the content on the page continued. For example, she pointed

out to the Board that the page included posts referencing a protest that occurred at an

in-district football game and may have also included posts referencing a School

Board meeting.

Sanders formally filed the trademark application on October 22, 2018, and the

trademark was granted on July 9, 2019. The trademark includes the phrase “Los

Lunas Public Schools,” but not the phrase “Los Lunas School District.”

Sanders informed the School Board in early August 2019 that she had asked

the school district’s attorney to write cease-and-desist letters referencing the new

trademark and deliver one to each of the Appellees. She indicated her expectation

that this action would cause “a disturbance” and “an uproar” on the Facebook page.

Id. at 15, 17. The cease-and-desist letters were then sent on August 29, 2019, to the

Appellees––or, as Sanders called them, the “operators” of the “Haters page.” Id. at

17. The letters stated that the school district would “take further legal action

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including filing of a civil lawsuit” if the Appellees failed to comply. Id. at 16.

Additionally, the letters included a form for the Appellees to sign, assuring that they

would comply in exchange for being “release[d] . . . from any claims of

infringement.” Id. at 16–17.

The Appellees received the letters and immediately changed the page name to

“Parent Discussion Page of Local Public Schools.” Id. at 17. About a month later,

however, the Appellees reverted to the original page name. Thereafter, the school

district issued a media statement asserting that the page was negatively affecting the

“orderly operations of individual schools and the district.” Id.

In October 2019, an attorney representing Sanders and the school district sent

another letter to the Appellees, demanding that they remove the phrase “Los Lunas

Schools” from the Facebook page. As with the August letters, this letter stated that

the Appellees’ “[f]ailure to comply will cause the District to seek and enforce its

legal remedies available under the Trademark including damages.” Id. at 18. The

Appellees then sought legal counsel for guidance on whether the new trademark

required them to remove “Los Lunas Schools” from their page’s name.

The Appellees ultimately decided to sue Sanders and the Los Lunas School

Board in February 2021, bringing a claim for First Amendment retaliation under 42

U.S.C. § 1983. Sanders alone, in her personal capacity, moved for summary

judgment, asserting qualified immunity. The district court denied Sanders’s motion,

holding that she was not entitled to qualified immunity because her conduct violated

the Appellees’ First Amendment free speech rights and because, at the time of her

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conduct, Sanders’s constitutional violation was clearly established as such under

Tenth Circuit precedent.

In its reasoning, the district court found that Sanders’s acquisition of the

trademark and her subsequent cease-and-desist letters were substantially motivated

by a desire to retaliate against the Appellees for their constitutionally protected

speech. The district court also found that Sanders’s cease-and-desist letters would

chill an ordinary person’s speech—and that the letters in fact actually chilled the

Appellees’ speech. Finally, the district court concluded that Sanders’s threatened

trademark-infringement suit was legally baseless because the Appellees did not use

the trademarked school-district name in a commercial context––which, the district

court noted, is a requirement for trademark infringement claims. Thus, the district

court held that Sanders violated the First Amendment by threatening frivolous

litigation against the Appellees in retaliation for their posts on the Facebook page.

Sanders timely appealed from the denial of her motion for summary judgment,

and the district court stayed the case pending the outcome of this appeal.

II.

“[W]e review the district court’s denial of a summary judgment motion

asserting qualified immunity de novo.” Fancher v. Barrientos, 723 F.3d 1191, 1199

(10th Cir. 2013) (citing Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010)).

But we can only review such a denial if we have jurisdiction. We have

jurisdiction to review “all final decisions of the district courts of the United States.”

28 U.S.C. § 1291. Ordinarily, orders denying summary judgment are “not appealable

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final [decisions] for purposes of . . . § 1291.” Sawyers v. Norton, 962 F.3d 1270,

1281 (10th Cir. 2020) (quoting Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th

Cir. 2013)) (internal quotation marks omitted). “The denial of qualified immunity to

a public official, however, is immediately appealable under the collateral order

doctrine to the extent it involves abstract issues of law.” Id. (quoting Fancher, 723

F.3d at 1198) (internal quotation marks omitted). Abstract issues of law concern

“(1) whether the facts that the district court ruled a reasonable jury could find would

suffice to show a legal violation” and “(2) whether that law was clearly established at

the time of the alleged violation.” Roosevelt-Hennix, 717 F.3d at 753.

There is one important caveat to our review. At the point of interlocutory

appeal, “we are not at liberty to review a district court’s factual conclusions, such as

the existence of a genuine issue of material fact for a jury to decide, or that a

plaintiff’s evidence is sufficient to support a particular factual inference.” Fogarty v.

Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008). Appellate jurisdiction based on the

collateral-order doctrine is limited to the questions of law necessary to determine the

interlocutory issue; thus, we lack jurisdiction to consider factual arguments or

challenges to the sufficiency of the evidence supporting any factual inference. Id.;

see Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir. 2001). Instead, we generally

must accept the district court’s factual findings and its conclusions that a reasonable

jury could find any particular facts. Sawyers, 962 F.3d at 1281. 1

1

There are three exceptions to this principle, but none apply here. See

McWilliams v. DiNapoli, 40 F.4th 1118, 1122 (10th Cir. 2022) (noting that appellate

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We turn now to the substantive standard for qualified immunity. When a

defendant asserts qualified immunity at the summary judgment stage, “the burden

shifts to the plaintiff to show that: (1) the defendant violated a constitutional right,

and (2) the constitutional right was clearly established.” Kapinski v. City of

Albuquerque, 964 F.3d 900, 905 (10th Cir. 2020) (quoting Koch v. City of Del City,

660 F.3d 1228, 1238 (10th Cir. 2011)) (internal quotation marks omitted). Therefore,

our qualified immunity analysis here requires that we consider both whether the

Appellees have shown that Sanders violated their First Amendment rights and

whether that “constitutional violation [was] clearly established at the time” of

Sanders’s conduct. McWilliams v. DiNapoli, 40 F.4th 1118, 1124 (10th Cir. 2022).

And we may “exercise [our] sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223,

236 (2009). 2 In this particular case, we first consider the “constitutional violation”

prong.

courts may “revisit the district court’s factual determinations” in an interlocutory

appeal if (1) “the district court failed to identify the factual disputes,” (2) “the record

blatantly contradicts the court’s factual determinations,” or (3) “the district court

committed legal error en route to the factual determinations” (cleaned up)).

2

Although courts may consider the two prongs of qualified immunity in any

order, “under either prong, courts may not resolve genuine disputes of fact in favor of

the party seeking summary judgment.” Tolan v. Cotton, 572 U.S. 650, 657 (2014).

This is especially so where “a court decides only the clearly-established prong,”

because that prong requires courts to “define the clearly established right at issue on

the basis of the specific context of the case.” Id. (internal quotation marks and

citation omitted).

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A. Qualified Immunity’s “Constitutional Violation” Prong

The district court determined that the Appellees satisfied the “constitutional

violation” prong by showing that Sanders’s conduct violated their First Amendment

rights to free speech. See ROA at 22–33. More specifically, the district court held

that Sanders violated the First Amendment by threatening frivolous litigation against

the Appellees in retaliation for their posts on the Facebook page. Id.

And while Sanders, in her opening brief on appeal, makes a few generalized

statements about the “constitutional violation” prong, we hold that she failed to

adequately brief this issue and therefore has waived any argument as to this prong.

We reach this conclusion after considering several things. First, Sanders does

not mention qualified immunity’s “constitutional violation” prong in her statement of

the issues in her opening brief. Sanders also does not address it in her summary of

the argument. Nor does she propose any standard of review to guide us in reviewing

the district court’s factual findings that led it to conclude that Sanders did in fact

violate the Appellees’ First Amendment rights. And although Sanders mentions the

prong when setting out the general legal standard for qualified immunity, she

provides no meaningful analysis of it whatsoever, focusing instead only on

challenges to the district court’s factual findings (and to the sufficiency of the

evidence for any factual inferences) 3 before abruptly turning to the second prong.

3

For example, at one point in her opening brief, Sanders argues that “[t]here

was nothing presented . . . that Defendant-Appellant was substantially motivated by

Plaintiffs-Appellees’ speech in the body of their Facebook site––she instead was

concerned with the use of the school district’s name in the site’s title causing

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“[A]n appellant may waive an issue by inadequately briefing it.” Burke v.

Regalado, 935 F.3d 960, 1014 (10th Cir. 2019). After all, “[t]he rules of appellate

procedure are designed to facilitate efficient appellate review by allowing one’s

adversary to respond to focused argument supported by authority.” MacArthur v. San

Juan County, 495 F.3d 1157, 1160 (10th Cir. 2007). Specifically, Federal Rule of

Appellate Procedure 28(a)(8)(A) “requires the argument section to contain

appellant’s contentions and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies.” Id. (internal quotation marks

omitted). “Cursory statements, without supporting analysis and case law,” are

insufficient to preserve an issue. Bronson v. Swensen, 500 F.3d 1099, 1105 (10th

Cir. 2007).

disruption” to the school district. Aplt. Br. at 16–17. In the same vein, Sanders also

contends that evidence of retaliatory motive “is sorely lacking where, as here,

Defendant-Appellant’s conduct in obtaining the trademark and sending the cease-

and-desist letter was aimed at use of the school district’s name and not the content of

Plaintiffs-Appellees’ speech.” Id. at 17.

All of this suggests that Sanders disagrees with the district court’s

determination that the evidence was sufficient for a reasonable jury to find that her

actions were “substantially motivated as a response to the [Appellees’] exercise of

constitutionally protected conduct.” ROA at 30–33. But, as explained, we lack

jurisdiction to review the district court’s factual findings—or its conclusions with

respect to evidence sufficiency—in this interlocutory appeal. Sawyers, 962 F.3d at

1281; Fogarty, 523 F.3d at 1154. Indeed, “even when a defendant ‘attempts to

characterize the issue on appeal as [the plaintiff’s] failure to assert a violation of a

constitutional right under clearly established law,’ we will decline to consider the

argument if it is ‘limited to a discussion of [the defendant’s] version of the facts and

the inferences that can be drawn therefrom.’” Duda v. Elder, 7 F.4th 899, 909–10

(10th Cir. 2021) (quoting Castillo v. Day, 790 F.3d 1013, 1018 (10th Cir. 2015))

(alterations in original). Inadequate briefing aside, then, the fact that Sanders casts

any possible first-prong argument as a factual challenge precludes us from

considering it.

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Therefore, to the extent Sanders intended to argue that the Appellees failed to

show a constitutional violation under the first prong of qualified immunity, we

“decline[] to consider” that argument because it was “not raised, or [was]

inadequately presented, in [Sanders’s] opening brief.” Id. at 1104; cf. Duda v. Elder,

7 F.4th 899, 916–17 (10th Cir. 2021) (holding on interlocutory appeal that official

had waived “any jurisdictionally appropriate challenge” to the district court’s holding

on the second prong of qualified immunity because the official had “not made one”

(citing Sawyers, 962 F.3d at 1286)). We thus hold that Sanders has waived her

opportunity to challenge the district court’s conclusion that her actions violated the

Appellees’ First Amendment rights, and we leave that conclusion undisturbed. 4

B. Qualified Immunity’s “Clearly Established” Prong

Accepting the district court’s unchallenged conclusion that Sanders’s actions

constituted a violation of the Appellees’ First Amendment rights (see ROA at 33), we

now turn to the “clearly established” prong of qualified immunity. Under this prong,

past cases must closely fit the facts of the present case for us to determine that

Sanders’s conduct, at the time, violated clearly established law.

In considering this prong, we must not “abstract [our past] holdings to the

situation here” too much. Est. of Smart v. City of Wichita, 951 F.3d 1161, 1174 (10th

4

We note, at this juncture, that it is procedurally proper for appellate courts to

leave in place a district court’s ruling on either prong of qualified immunity when a

party fails to preserve the issue. See Sawyers, 962 F.3d at 1286 (letting stand the

denial of summary judgment on first prong of qualified immunity where appellant

only raised factual challenges and deeming a challenge to the second prong waived

where appellant failed to adequately brief the issue).

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Cir. 2020). Doing so may “define[] the qualified immunity inquiry at [too high a]

level of generality.” Mullenix v. Luna, 577 U.S. 7, 16 (2015) (per curiam). Although

there need not be a “case directly on point,” id. at 12, “the clearly established law

must be ‘particularized’ to the facts of the case.” White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In

short, “[t]he salient question is whether the state of the law at the time of an incident

provided fair warning to the defendants that their alleged conduct was

unconstitutional.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (cleaned up).

The district court concluded that Sanders’s conduct was, at the time it

occurred, clearly established as a violation of the Appellees’ First Amendment rights

based on a “materially similar” published precedent of this Court. Specifically, the

district court concluded that existing cases have clearly established that a government

actor violates the First Amendment when they threaten frivolous litigation in

retaliation for a person’s exercise of their right to free speech.

“[A] ‘materially similar’ published case from the Supreme Court or Tenth

Circuit may give an official fair notice that their specific conduct would violate a

constitutional right.” ROA at 33 (citing Apodaca v. Raemisch, 864 F.3d 1071, 1076

(10th Cir. 2017)). In determining that Sanders was not entitled to qualified

immunity, the district court found our previous case Beedle v. Wilson, 422 F.3d 1059

(10th Cir. 2005), to be materially similar to the facts of this case. We agree that the

facts in Beedle are materially similar enough to those in this case to have put Sanders

on notice that her conduct violated the Appellees’ First Amendment rights.

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In Beedle, we held that a frivolous lawsuit brought by the government in

retaliation for an individual’s speech critical of the government violated the First

Amendment. 422 F.3d at 1069–71. In that case, plaintiff Peggy Lee Korn was

allegedly a victim of sexual battery committed by a nurse’s aide while Korn was

hospitalized at a public hospital. Id. at 1063. Korn and her husband, Larry E.

Beedle, wrote two public letters that asked if anyone else had experienced such

treatment while at that hospital, and they mailed these letters to local residents in the

hospital’s vicinity. Id. The hospital then sued Beedle for libel on account of the

letters. Id. Beedle and Korn responded by filing suit in federal court, alleging that

the hospital violated Beedle’s First Amendment rights “by filing the malicious and

wrongful state-court libel lawsuit against him.” Id. at 1063–64. Beedle contended

that the hospital’s suit was intended both to intimidate and punish him for the

exercise of his free-speech rights against the hospital and to chill his future speech.

Id. at 1064. He also argued that, as a government entity, the hospital was precluded

from filing a malicious libel claim against a private citizen. Id.

We considered two cases in Beedle that involved criminal prosecutions:

Wolford v. Lasater, 78 F.3d 484 (10th Cir. 1996), and Gehl Group v. Koby, 63 F.3d

1528 (10th Cir. 1995). Those cases, we determined, “make clear that a governmental

lawsuit brought with the intent to retaliate against a citizen for the exercise of his

First Amendment rights is itself a violation of the First Amendment and provides

grounds for a § 1983 suit.” Beedle, 422 F.3d at 1066. Important to our holding, we

agreed with Beedle that government entities like a public hospital may not bring libel

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actions against private citizens––making the hospital’s suit legally baseless. Id. at

1066–67. Thus, we held that the hospital’s frivolous, retaliatory lawsuit violated

Beedle’s First Amendment rights. Id. at 1067. Beedle therefore created a clearly

established rule in the Tenth Circuit: government actors violate the First Amendment

when they initiate frivolous legal action against a person in retaliation for that

person’s exercise of their rights to free speech, including speech critical of the

government.

Compare Beedle to the facts of the present case. Here, the Appellees’

Facebook page was used as a means of spreading criticisms and concerns regarding

government employees––namely, employees of Los Lunas public schools. The

Facebook page thus functioned much like the letters critical of the hospital that

Beedle mailed to local residents: both publicly disseminated disapproving messages

about government employees. Furthermore, Sanders, like the hospital in Beedle,

“was substantially motivated to threaten litigation against [the Appellees] in response

to th[eir] protected speech” that she objected to. ROA at 36. Because the facts in

Beedle closely fit those in the case before us, Sanders’s conduct would seem to fall

squarely within that clearly established precedent.

Nevertheless, Sanders tries to distinguish Beedle. She argues that her

threatened trademark infringement lawsuit is different from the malicious libel

lawsuit in Beedle because the hospital there was precluded, as a matter of law, from

filing that type of action. By contrast, Sanders claims, “[i]t goes without saying” that

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she would have “the capacity to file suit for trademark infringement.” Aplt. Br. at

21.

True, Beedle relied in large part on the fact that the public hospital was barred

(under “ample [legal] authority”) from bringing a malicious libel action against

Beedle, a private citizen. 422 F.3d at 1071. But what made that fact important was

that it showed that the hospital’s lawsuit was legally frivolous––which, in turn, was

evidence that the lawsuit was retaliatory. See id. at 1067.

The same is true of Sanders’s threatened lawsuit. Despite Sanders’s

perfunctory assertion that she would have “the capacity” to bring a trademark

infringement action against the Appellees, such an action would be legally baseless.

Indeed, the district court expressly concluded that Sanders’s “threatened lawsuit

fail[ed] to set forth a legally viable claim” and was therefore “frivolous.” ROA at

36–38. In so concluding, the district court noted that, as a legal matter, the Lanham

Act only applies when an alleged infringer uses another’s trademark commercially, or

“in connection with goods or services”––which was not the case here, given that the

Appellees’ use of the Los Lunas Public Schools name was decidedly non-

commercial. See id. at 28–29 (citing Utah Lighthouse Ministry v. Found. for

Apologetic Info. & Rsch., 527 F.3d 1045, 1051–52 (10th Cir. 2008)).

We agree with the district court. 5 Because the Appellees used the trademarked

Los Lunas Public Schools name solely in connection with their “critical commentary

5

Notably, although Sanders briefly states that she would be entitled to bring a

trademark infringement action against the Appellees, she does not meaningfully

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about the trademark owner,” and because their “use of the trademark was separated

from any goods or services,” the Lanham Act does not apply. Utah Lighthouse, 527

F.3d at 1052. We therefore hold that Sanders’s threatened lawsuit was frivolous, like

the hospital’s lawsuit in Beedle. Once again, then, her conduct seems to fall within

the case’s ambit. But there remains the fact that, in Beedle, the hospital actually

commenced litigation against Beedle––whereas here Sanders only ever threatened

litigation against the Appellees. That, however, turns out to be a distinction without

a difference.

Sanders suggests otherwise. She contends that her “sending the cease-and-

desist letter was aimed at use of the school district’s name and not the content of

Plaintiff-Appellees’ speech.” Aplt. Br. at 17. And so––as Sanders sees it––her threat

of litigation served only as a cautionary measure, aiming to prevent further

“disruption” from the Facebook page. See id. at 25–26. In other words, Sanders

contends that the cease-and-desist letter could not chill the Appellees’ speech

because all it did was notify the Appellees that their speech was disruptive and in

violation of the newly minted trademark she had acquired for the school district.

challenge the district court’s conclusion to the contrary. She supplies no cases

casting doubt on the authorities cited by the district court, nor does she otherwise

explain how she would be entitled to bring a trademark infringement claim

notwithstanding the Appellees’ non-commercial use of the mark. Without any

supporting analysis or legal authority, Sanders’s argument regarding the

frivolousness of her threatened trademark infringement lawsuit is inadequately

briefed, and we would ordinarily deem it waived. See Burke, 935 F.3d at 1014. But

because “we understand enough about [Sanders’s] argument[] to conclude that [it is]

meritless,” we exercise our discretion to address her point. MacArthur, 495 F.3d at

1161.

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And because the letter was only threatening litigation over the trademark, Sanders’s

logic goes, her conduct could not violate the First Amendment, even under Beedle.

But the Supreme Court has rejected an analogous theory before. In Bantam

Books, Inc. v. Sullivan, the Supreme Court held that even the mere threat of

retaliatory litigation can unconstitutionally chill speech. 372 U.S. 58, 64 (1963).

That case dealt with a Rhode Island state commission whose duty was to seek out any

form of speech that, in the commission’s view, “contain[ed] obscene, indecent, or

impure language,” and also to “educate the public concerning” said speech. Id. at 59.

As part of its duties, the commission was required “to investigate and recommend the

prosecution of all violations” of speech-decency statutes under state law. Id. at 60.

Meanwhile, the appellants in Bantam Books were four book publishers who,

according to the commission, were distributing obscene content. The distributor for

all four publishers had received notices from the commission, which stated that some

of the publishers’ books were “objectionable” and suggested that the commission

could recommend prosecution against the publishers. Id. at 62. In response to the

notices, the distributor took “steps to stop further circulation” of the named books––

refusing to fill pending orders, refusing new orders, and returning all unsold copies to

the publishers. Id. at 63. Those facts, the Supreme Court held, demonstrated “a

scheme of governmental censorship” that violated the First Amendment. Id. at 64.

Similarly, the Appellees in this case were, in Sanders’s view, violating the

“Los Lunas Public Schools” trademark and causing substantial disruption with their

Facebook-page speech. Sanders found that speech objectionable, and she notified the

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Appellees by sending them the cease-and-desist letters. And in response to those

notices, the Appellees—like the distributor in Bantam Books—took steps to stop their

objectionable speech by changing (even if temporarily) the name of their Facebook

page. Thus, Sanders’s conduct amounted to a form of governmental censorship

similar to that in Bantam Books.

The fact that Sanders never took legal action against the Appellees does not

change this conclusion. After all, the Bantam Books appellants’ publications were

never “seized or banned by the State,” and “no one ha[d] been prosecuted for their

possession or sale” at the time of the case; all the commission could do was “exhort[]

booksellers and advise[] them of their legal rights.” Id. at 66–67. But the Supreme

Court nevertheless held that the absence of any actual legal sanctions did not change

the fact that the commission’s very existence, and its process of investigating and

recommending prosecution of obscene content, chilled the appellants’ speech. Id. at

67. The Court reasoned that even “the threat of invoking legal sanctions and other

means of coercion, persuasion, and intimidation” alone showed that “the Commission

deliberately set about to achieve the suppression of publications deemed

‘objectionable’ and succeeded in its aim.” Id. (emphasis added).

So too here. The district court found “ample evidence that [Sanders] was

substantially motivated to seek legal action against [the Appellees] in response to

protected speech occurring on the page,” ROA at 32, which indicates Sanders

deliberately sought to suppress the Appellees’ speech. Further, sending the cease-

and-desist letters, even without initiating formal legal action, was itself enough to

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chill a person of ordinary firmness from continuing to speak––not least because the

letters included forms for the Appellees to sign and return within ten days, assuring

their compliance with Sanders’s demands. And, again, the fact that the Appellees at

one point changed the name of the Facebook page in response to the cease-and-desist

letters is yet further evidence that Sanders’s actions in fact had a chilling effect on

the Appellees’ speech. 6

This chilling effect leads us to conclude that there is no material difference

between a threatened civil action (as is present in this case, and as was present in

Bantam Books) and an actually filed civil action (as was present in Beedle). Taken

together, Beedle and Bantam Books clearly establish that a government actor

threatening frivolous litigation in retaliation for a person’s constitutionally protected

speech violates the First Amendment. 7 Thus, we hold that the fact that Sanders

6

Sanders does not challenge the district court’s conclusion that the evidence

was sufficient for a reasonable factfinder to find that her cease-and-desist letters had

a chilling effect. Of course, we would lack jurisdiction to consider any such factual

or sufficiency-of-the-evidence arguments, as explained above. See Fogarty, 523 F.3d

at 1154. In any event, we see no reason to disagree with the district court’s

conclusion.

7

Our holding is limited to government threats of frivolous retaliatory

litigation. As explained, the district court correctly concluded that Sanders’s

threatened suit was indeed frivolous.

We thus do not have occasion to decide whether the threat of a meritorious-

yet-retaliatory lawsuit violates clearly established law in our Circuit. But we pause

to note that the Supreme Court has at least suggested that, even with “proof of some

retaliatory animus,” a lawsuit threatened by the government may not necessarily run

afoul of the First Amendment if there is some other legitimate, non-retaliatory basis

on which it could have, and would have, still been brought. Nieves v. Bartlett, 587

U.S. 391, 398–401 (2019); see Hartman v. Moore, 547 U.S. 250, 259–60, 264–65

(2006); cf. Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983) (“The

filing and prosecution of a well-founded lawsuit may not be enjoined . . . , even if it

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threatened a baseless civil lawsuit against the Appellees is materially similar to the

fact that the public hospital in Beedle filed a baseless civil lawsuit against Beedle. 8

Because Sanders’s constitutional violation was clearly established by the existence of

a materially similar case among our precedent, we hold that the district court

correctly denied Sanders’s motion for summary judgment because she is not entitled

to qualified immunity on the Appellees’ § 1983 First Amendment retaliation claim.

III.

For the foregoing reasons, we AFFIRM.

would not have been commenced but for the plaintiff’s desire to retaliate against the

defendant for exercising [protected] rights.”).

8

Additionally, the record before us indicates that the only reason that Sanders

has not yet actually filed a civil action against the Appellees is that she previously

represented that she would not seek enforcement of the trademark against the

Appellees while this case is pending. See ROA at 37. In light of the district court’s

finding that Sanders’s cease-and-desist letter was speech-chilling, we conclude that

her letter threatening suit is materially similar to the actual speech-chilling suit filed

in Beedle.

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