Anthony Defrancesco v. Robert C. Robbins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-16147

ANTHONY T. DEFRANCESCO,

D.C. No.

Plaintiff-Appellant,

4:20-cv-00011-

CKJ

v.

ROBERT C. ROBBINS, in his

OPINION

individual capacity; MICHAEL D.

DAKE, in his individual capacity;

UNKNOWN PARTIES, named as and

does 1-10 inclusive,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted August 21, 2024

San Francisco, CA

Filed May 7, 2025

Before: Marsha S. Berzon, Daniel A. Bress, and Lawrence

VanDyke, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Berzon

2 DEFRANCESCO V. ROBBINS

SUMMARY*

First Amendment/Qualified Immunity

The panel affirmed the district court’s dismissal on

qualified immunity grounds of Anthony DeFrancesco’s

complaint alleging that he was harassed and then fired from

his position as the Senior Director of Operations at the

University of Arizona Health Sciences division (“UAHS”)

in retaliation for his husband’s whistleblowing speech, in

violation of the First Amendment.

DeFrancesco’s husband, who had earlier also held a high

position at the University of Arizona as Senior Vice

President and Chief Financial Officer, opposed the UAHS’s

hiring of Michael Dake to serve as UAHS Senior Vice

President. After Dake was hired, DeFrancesco’s husband

voluntarily left his position with the

University. DeFrancesco contends that Dake harassed and

subsequently terminated him from his position because of

his husband’s speech. DeFrancesco sued Dake and

University President Robert Robbins, alleging that they

infringed upon his First Amendment right to be free from

retaliation for his husband’s allegedly protected

whistleblowing speech.

The panel held that defendants were entitled to qualified

immunity because it was not clearly established at the time

of DeFrancesco’s termination in June 2019 that defendants’

adverse treatment of DeFrancesco on account of his

husband’s speech violated the First Amendment. In so

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DEFRANCESCO V. ROBBINS 3

holding, the panel left for another day the merits of the

underlying constitutional question of whether a public

employee has constitutional protection from retaliation

based on a close family member’s speech, in this case a

family member who is also a public employee.

Concurring, Judge Berzon wrote separately to explain

that although the familial antiretaliation protection under the

First Amendment was not clearly established at the time of

DeFrancesco’s termination, she would reach the first prong

of the qualified immunity analysis and hold that such

protection is well-grounded in Supreme Court and Ninth

Circuit precedent. Judge Berzon would conclude that,

taking the facts alleged in DeFrancesco’s complaint as true

and drawing all reasonable inferences in his favor,

defendants violated DeFrancesco’s constitutional protection

against retaliation for his husband’s speech.

COUNSEL

Lauren M. Brody (argued), David W. Schecter, and Louis R.

Miller, Miller Barondess LLP, Los Angeles, California;

Jonathan A. Dessaules, Dessaules Law Group, Phoenix,

Arizona; for Plaintiff-Appellant.

Daniel G. Dowd (argued), Cole K. Kubosumi, and Rebecca

van Doren, Cohen Dowd Quigley, Phoenix, Arizona, for

Defendants-Appellees.

4 DEFRANCESCO V. ROBBINS

OPINION

PER CURIAM:

From 2015 to 2019, Anthony DeFrancesco served as the

Senior Director of Operations at the University of Arizona

Health Sciences division. DeFrancesco’s husband had

earlier also held a high position at the University, as Senior

Vice President and Chief Financial Officer. DeFrancesco

contends that he was harassed and then fired from his job in

retaliation for his husband’s whistleblowing speech.

DeFrancesco sued his supervisor and the president of the

University of Arizona (“Officials”), alleging the Officials’s

retaliation for his husband’s speech violated the First

Amendment. At the motion to dismiss stage, the Officials

invoked qualified immunity, arguing that First Amendment

protection of public employees from retaliation because of a

relative’s speech is not clearly established. The district court

agreed and dismissed DeFrancesco’s complaint.

We affirm. The Officials are entitled to qualified

immunity, as it was not clearly established at the time of

DeFrancesco’s termination in June 2019 that the Officials’s

adverse treatment of DeFrancesco on account of his

husband’s speech violated the First Amendment. In so

holding, we leave for another day the merits of the

underlying constitutional question—whether a public

employee has constitutional protection from retaliation

based on a close family member’s speech, in this case a

family member who is also a public employee.

DEFRANCESCO V. ROBBINS 5

BACKGROUND1

A

The University of Arizona Health Sciences (“UAHS”) is

a prominent academic medical center and public health

department within the University of Arizona. Plaintiff

Anthony DeFrancesco was the Senior Director of Operations

at UAHS from 2015 to 2019; he eventually oversaw a budget

in excess of $1 billion and served as the functional head of

human resources for a staff of over 500 people. For most of

this period, DeFrancesco’s husband, Gregg Goldman, was a

Senior Vice President and the Chief Financial Officer

(“CFO”) for the University.

In 2017, University President Robert Robbins put

together a search committee to find a new Senior Vice

President (“SVP”) to run UAHS. Robbins requested that the

University hire a particular executive search firm, Russell

Reynolds, to assist the search committee. Several high-

ranking employees of Russell Reynolds were close personal

friends of Robbins. Goldman volunteered to serve as co-

chair of the search committee.

Robbins encouraged Defendant Michael Dake to apply

for the open SVP position. Robbins and Dake are both

surgeons; they had worked together and attended medical

conferences, athletic events, and music concerts together

1

The facts in this section are drawn from allegations in the complaint.

As this appeal comes to the Court from the district court’s grant of a

motion to dismiss for failure to state a claim, the Court assumes the facts

alleged in the complaint are true and construes the complaint in the light

most favorable to DeFrancesco. See Gilstrap v. United Air Lines, Inc.,

709 F.3d 995, 998 n.1 (9th Cir. 2013).

6 DEFRANCESCO V. ROBBINS

over the years. Robbins calls Dake his “longest, best and

dearest friend.”

The University received many applications for the open

SVP position. Dake entered the process late and did not

perform well in his first interview. At the end of the initial

round of interviews, Goldman drove Robbins to the airport.

During the drive, in response to Robbins’s inquiry, Goldman

explained that Dake had performed poorly in his interview

with the committee members and that the committee likely

would not move him forward. Robbins replied that he was

not concerned because it was “taken care of that Dake would

be hired.”

Later that same day, the committee members had a

“robust discussion” about all the candidates, including Dake.

A straw vote indicated Dake would not be advanced to the

next round of consideration. But the committee members

were concerned that voting Dake down might hurt their

careers. At the suggestion of representatives from Russell

Reynolds, the committee conducted an anonymous vote to

avoid potential career repercussions. After tallying the votes,

the Russell Reynolds representatives announced that Dake

was one of the finalists. The committee members were

surprised and asked the firm to disclose the vote counts. The

firm refused. After some pressure, one of the firm’s

representatives said that “the vote had turned out how

President Robbins wanted.”

Dake’s follow-up interview didn’t go any better than the

first. Interviewers concluded that, among other things, he

lacked an understanding of the academic part of the job; had

minimal experience running an academic department; was

overconfident; and had allegedly engaged in unethical

billing and research practices in the past. Goldman conveyed

DEFRANCESCO V. ROBBINS 7

these results and the (anonymous) views of the committee

members to Robbins, who nevertheless declared Dake to be

among the two finalists for the open position.

On March 2, 2018, Robbins met with other senior

University officials, including Goldman, to discuss the SVP

search. Robbins announced that he would extend an offer to

Dake. Goldman spoke next, expressing concerns about the

integrity of the hiring process. He stated that he believed the

entire process was pre-planned by Robbins and that hiring

Dake would be a serious mistake. According to

DeFrancesco’s complaint, Goldman was “blowing the

whistle on an important issue for the community: corruption

and abuse at the highest levels of the State’s largest public

university.” The complaint states that Goldman did so in his

capacity “as a private citizen, not as the CFO of the

University and not as the co-chair of the search committee.”

Other officials also expressed concerns about Dake.

Robbins grew angry and wondered how he could “take

it back,” as he had “finally convinced [Dake] to apply and in

essence ha[d] already offered him the job.” Robbins then

stormed out. His senior advisor said she had never seen him

so angry and that Goldman and the others should be worried

for their jobs.

In March 2018, Robbins hired Dake to serve as SVP of

UAHS, which he celebrated as getting the “band back

together again.” Robbins told Dake that Goldman had firmly

advocated against Dake’s candidacy. Robbins also told Dake

that Goldman’s husband, DeFrancesco, was a UAHS

executive and that Dake had the authority to fire him.

DeFrancesco had performed well during his tenure at

UAHS, never receiving a complaint. But the tide began to

turn after Dake became SVP of UAHS. With no explanation,

8 DEFRANCESCO V. ROBBINS

Dake told DeFrancesco he was fired and had to “reapply” for

his job. Though DeFrancesco was not in fact let go at that

point, Dake continued to subject DeFrancesco to targeting

and harassment. Goldman complained to Robbins on behalf

of DeFrancesco, and Robbins represented that he would

handle the problem by speaking with Dake. But the targeting

did not stop.

After that, Goldman voluntarily left the University. In

October 2018, Dake refused to promote DeFrancesco to a

position whose responsibilities DeFrancesco was already

performing. Dake told DeFrancesco that now that his

husband had left, DeFrancesco had a “decision to make,” a

statement DeFrancesco interpreted to mean that he was not

welcome at UAHS as long as Dake was in charge.

Dake continued to make life difficult for DeFrancesco,

undermining him in meetings with high-level executives,

ignoring him, and circumventing him by communicating

directly with his subordinates. After months of such

treatment, Dake formally terminated DeFrancesco, effective

June 30, 2019.

B

In January 2020, DeFrancesco sued Robbins and Dake,2

alleging that they infringed upon DeFrancesco’s First

Amendment right to be free from retaliation for his

husband’s allegedly protected whistleblowing speech.3

2

Doe defendants were also named, along with the Arizona Board of

Regents.

3

In addition to his First Amendment claim, DeFrancesco alleged that the

individual Defendants denied him equal protection by harassing and

terminating him on account of his sexual orientation, and that the

DEFRANCESCO V. ROBBINS 9

DeFrancesco originally styled this claim as a violation of his

First Amendment right of association with his spouse.

Robbins and Dake moved to dismiss DeFrancesco’s

complaint, arguing that DeFrancesco had failed to state a

claim under the First Amendment and also invoking

qualified immunity. The district court granted the motion.

The court held, first, that DeFrancesco had not demonstrated

that he had a clearly-established First Amendment

associational right to be free from retaliation for the

protected speech of his spouse. The district court

acknowledged that some circuits and district courts had

“found that retaliation against a public employee for the

speech of a close family member violates the right to

freedom of association,” but concluded that “neither the

Supreme Court nor the Ninth Circuit have clearly delineated

the parameters of associational rights vis-à-vis a First

Amendment retaliation claim.” The district court also held

that even if such a right were clearly established, Goldman’s

speech was not protected. According to the district court,

Goldman spoke pursuant to his official duties on individual

personnel manners, not as a citizen on a matter of public

concern. Given these determinations, the district court

concluded, Robbins and Dake were entitled to qualified

immunity.

DeFrancesco appealed the ruling to this court. See

DeFrancesco v. Ariz. Bd. of Regents, No. 21-16530, 2023

Arizona Board of Regents had discriminated against him on the basis of

sex because of his sexual orientation, in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq. These claims were

dismissed, and their dismissal was affirmed on appeal. See DeFrancesco

v. Ariz. Bd. of Regents, No. 21-16530, 2023 WL 313209 (9th Cir. Jan.

19, 2023). The Arizona Board of Regents is no longer a defendant.

10 DEFRANCESCO V. ROBBINS

WL 313209 (9th Cir. Jan. 19, 2023). We held, among other

things, that the district court abused its discretion by denying

DeFrancesco leave to amend his First Amendment claim to

clarify whether Goldman was engaged in protected

whistleblowing speech, and remanded the case for further

proceedings. Id. at *2.

On remand, DeFrancesco filed a Second Amended

Complaint (“SAC”) alleging that Goldman spoke as a

whistleblower on cronyism and corruption at UAHS. Also,

whereas DeFrancesco’s initial complaint asserted that

Robbins and Dake had violated his First Amendment right

of association by retaliating against him for his husband’s

First Amendment-protected speech, the SAC did not

mention a right of association and instead asserted that

Robbins and Dake violated the First Amendment by

“harass[ing] and retaliat[ing]” against DeFrancesco because

of his husband’s protected speech.

The district court granted Robbins and Dake’s second

motion to dismiss, again based on qualified immunity. This

time, the court held that the SAC alleged facts sufficient to

plausibly allege that Goldman spoke as a citizen on a matter

of public concern. But it once again held that there was “no

persuasive law that clearly establishes that a First

Amendment retaliation claim may be made by one person

for the protected speech of another person based on a close

personal relationship between the two.” The district court

also noted that the SAC did not assert the violation of a First

Amendment right of association, and so did “not revisit its

prior determination that there is no clearly established right

of association under the First Amendment governing the

circumstances of this case.”

DEFRANCESCO V. ROBBINS 11

DISCUSSION

We review de novo a district court’s dismissal under Fed.

R. Civ. P. 12(b)(6), “accepting as true all allegations of fact

in a well-pleaded complaint and construing those facts in the

light most favorable to the plaintiff.” Sampson v. Cnty. of

L.A. ex rel. L.A. Cnty. Dep’t of Child. & Fam. Servs., 974

F.3d 1012, 1018 (9th Cir. 2020) (quoting Karam v. City of

Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)). And we

review de novo a district court’s decision on qualified

immunity. Id.

In assessing whether qualified immunity applies, we

consider whether (1) the plaintiff has plausibly alleged a

violation of a constitutional right, and (2) the constitutional

right was “clearly established” at the time of the alleged

misconduct. Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir.

2022) (quoting District of Columbia v. Wesby, 583 U.S. 48,

62-63 (2018)). We may exercise our “sound discretion in

deciding which of the two prongs of the qualified immunity

analysis should be addressed first.” Id. (quoting Pearson v.

Callahan, 555 U.S. 223, 236 (2009)). As we conclude that

DeFrancesco’s constitutional protection from retaliation for

a relative’s speech was not clearly established by the time of

his termination in June 2019, we do not reach the

constitutional violation prong.

To meet the “clearly established” requirement, the law at

the time of the conduct must have been “sufficiently clear”

that every “reasonable official would have understood that

what he is doing” was unlawful. Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). In other words, “the focus is on

whether the officer had fair notice that her conduct was

unlawful, . . . judged against the backdrop of the law at the

12 DEFRANCESCO V. ROBBINS

time of the conduct.” Evans v. Skolnik, 997 F.3d 1060, 1066

(9th Cir. 2021) (quoting Brosseau v. Haugen, 543 U.S. 194,

198 (2004)).

A constitutional right may be “clearly established by

controlling authority or a robust consensus of cases of

persuasive authority.” Tuuamalemalo v. Greene, 946 F.3d

471, 477 (9th Cir. 2019) (citing Wesby, 583 U.S. at 63); see

also Waid v. County of Lyon, 87 F.4th 383, 388 (9th Cir.

2023); Hopson v. Alexander, 71 F.4th 692, 697 (9th Cir.

2023).4 There is no binding precedent in this court governing

the issue at stake here. In this circumstance, courts in this

circuit may look to other decisional law, “including relevant

decisions of other circuits, state courts, and district courts.”

Moonin v. Tice, 868 F.3d 853, 868 (9th Cir. 2017); see also

Evans, 997 F.3d at 1066.

Not just any decisional law will do. “We have been

somewhat hesitant to rely on district court decisions,” Evans,

997 F.3d at 1067, for example, because they “do not

necessarily settle constitutional standards,” id. (quoting

Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)). And

though we “have held that unpublished decisions . . . may

inform our qualified immunity analysis,” rarely have we

concluded, “absent any published opinions on point or

overwhelming obviousness of illegality,” that “the law was

clearly established on the basis of unpublished decisions

only.” Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002).

Further, as the Supreme Court has repeatedly stated, clearly

established law may not be defined “at a high level of

4

On “rare” occasions, a plaintiff may demonstrate that his case is

“obvious under existing general principles.” Waid, 87 F.4th at 388.

Contrary to DeFrancesco’s assertions, this is not one of those occasions.

DEFRANCESCO V. ROBBINS 13

generality.” Evans, 997 F.3d at 1067 (quoting al-Kidd, 563

U.S. at 742).

At the same time, qualified immunity “does not require

a case directly on point” regarding the issue at hand. White

v. Pauly, 580 U.S. 73, 79 (2017) (alterations omitted)

(quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). Courts

may apply clearly established legal standards to new fact

patterns and, in appropriate circumstances, “rely on the

intersection of multiple cases” to conclude that the

unlawfulness of government officials’ conduct should have

been apparent to them. Polanco v. Diaz, 76 F.4th 918, 930

& n.8 (9th Cir. 2023). Still, the “contours” of the right must

be “sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was

violating it.” Kisela v. Hughes, 584 U.S. 100, 105 (2018)

(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). Put

another way, “existing precedent must have placed the

statutory or constitutional question beyond debate.” Id. at

104 (quoting White, 580 U.S. at 79).

With this standard in mind, we assess the landscape of

on-point case law that existed at the time Dake and Robbins

allegedly retaliated against DeFrancesco, using the date of

DeFrancesco’s termination—June 30, 2019—as the relevant

temporal threshold.

1. There are a few decisions of the Supreme Court and

the Ninth Circuit that are relevant to this case, but they do

not clearly establish the unlawfulness of Dake and Robbins’s

conduct.

In Thompson v. North American Stainless, LP, the

Supreme Court considered whether a company violated Title

VII’s antiretaliation provision when it fired plaintiff Eric

Thompson because his fiancée, also an employee of the

14 DEFRANCESCO V. ROBBINS

company, had filed a sex discrimination charge with the

Equal Employment Opportunity Commission. 562 U.S. 170,

173 (2011). The Court “ha[d] little difficulty concluding”

that firing a non-speaking employee for his fiancée’s legally-

protected speech ran afoul of Title VII’s antiretaliation

provision. Id. Thompson, however, concerned a distinct

statutory right, based on an antiretaliation provision that was

“worded broadly.” Id. at 175. Its statutory holding is not

enough, on its own, to have clearly established

DeFrancesco’s constitutional protection.

Heffernan v. City of Paterson, 578 U.S. 266 (2016), is

also not entirely on point. Heffernan considered whether a

city could constitutionally demote a police officer based on

the mistaken perception of the officer’s “overt involvement”

in a particular mayoral candidate’s campaign. Id. at 269. In

truth, Heffernan was picking up a yard sign for his bedridden

mother. Heffernan held that the demotion violated the

officer’s First Amendment right, as it was the government’s

retaliatory motive—not the employee’s actual activity—that

mattered in assessing the retaliation claim. Id. at 272-73. But

unlike Heffernan, DeFrancesco does not allege or argue that

Dake retaliated against him based on DeFrancesco’s

perceived speech. So Heffernan’s holding is not sufficiently

apropos for qualified immunity purposes.

The most factually relevant Ninth Circuit precedent is

Biggs v. Best, Best & Krieger, 189 F.3d 989 (9th Cir. 1999).

In Biggs, an attorney and her family members alleged that

their First Amendment protection against retaliation had

been violated. Id. at 992-93. The attorney was fired from her

position with a private law firm that served as city attorney

after her family (and she herself) engaged in political

activity. Id. at 992. Our court dismissed the case because

Biggs qualified for the policymaker exception to First

DEFRANCESCO V. ROBBINS 15

Amendment protection for public employee speech, relying

on Fazio v. City of San Francisco, 125 F.3d 1328, 1331-34

(9th Cir. 1997). We never opined on whether Biggs would

otherwise have been “able to assert a First Amendment

section 1983 claim” premised in part on retaliation for her

family’s First Amendment activities. Biggs, 189 F.3d at 994-

95.

DeFrancesco cites several Supreme Court and

precedential Ninth Circuit decisions for the proposition that

the First Amendment prohibits government officials from

retaliating against their employees for speaking out. See

Appellant’s Opening Br. at 29-30 (citing, inter alia,

Hartman v. Moore, 547 U.S. 250, 256 (2006); Nieves v.

Bartlett, 587 U.S. 391 (2019)); see also id. at 36-38;

Appellant’s Reply Br. at 9-11 (citing Sampson, 974 F.3d at

1020-21). But those cases cannot figure into our “clearly-

established” analysis. Although the law is “settled that as a

general matter,” public employees enjoy protection from

retaliation based on their own protected speech, Hartman,

547 U.S. at 256, applying this First Amendment principle to

retaliation for speech by a family member does not represent

the “mere application of settled law to a new factual

permutation.” Dodge v. Evergreen Sch. Dist. #114, 56 F.4th

767, 784 (9th Cir. 2022) (quoting Eng v. Cooley, 552 F.3d

1062, 1076 (9th Cir. 2009)). First Amendment retaliation

cases in which the plaintiff, a protected speaker, was injured

by the employer’s actions do not clearly establish that a

speaker’s family member may not be retaliated against.

Rather, speech-based retaliation against a non-speaking

third-party implicates a different species of constitutional

protection, the contours of which must be independently

delineated.

16 DEFRANCESCO V. ROBBINS

2. Because binding precedents do not clearly establish

DeFrancesco’s First Amendment antiretaliation protection,

we turn next to an array of relevant out-of-circuit and district

court cases to evaluate whether there was, by June 2019, a

“robust consensus of persuasive authority” establishing his

constitutional protection. We conclude that there was not.

To begin, we note that some circuits have recognized that

the First Amendment prohibits retaliation against a public

employee for a family member’s conduct or speech. See

Adler v. Pataki, 185 F.3d 35, 44 (2d Cir. 1999) (deriving the

familial antiretaliation protection from the First Amendment

right of intimate association); Adkins v. Bd. of Educ., 982

F.2d 952, 955-56 (6th Cir. 1993) (same); see also Nailon v.

Univ. of Cincinnati, 715 F. App’x 509, 516-17 (6th Cir.

2017) (deriving the familial antiretaliation right from the

First Amendment’s free speech guarantee); Skalsky v. Indep.

Sch. Dist. No. 743, 772 F.3d 1126, 1129-31 (8th Cir. 2014)

(assuming, without expressly addressing the issue, that

retaliation against a public employee for his wife’s speech is

actionable under the First Amendment). And several district

courts, including some in our circuit, have acknowledged

that the First Amendment’s antiretaliation protection for

public employees may cover the relatives of those engaged

in First Amendment-protected activity.5

5

See, e.g., Freeman v. County of Riverside, No. 18-2171, 2019 WL

7905733, at *5 n.2 (C.D. Cal. Apr. 5, 2019) (“[R]etaliation based on

speech of a close family member is a right protected by the First

Amendment in the Ninth Circuit.”); Isakhanova v. Muniz, No. 15-cv-

03759, 2016 WL 1640649, at *4-5 (N.D. Cal. Apr. 26, 2016)

(acknowledging a “line of cases recognizing a cause of action where an

individual has suffered retaliation for his or her perceived association

with the speech of a close family member” and concluding that plaintiff

DEFRANCESCO V. ROBBINS 17

We turn next to the decisions that Dake and Robbins

contend cast doubt on the doctrinal firmness of the variety of

First Amendment protection here at issue. In one, Gaines v.

Wardynski, 871 F.3d 1203 (11th Cir. 2017), a public school

teacher alleged that her First Amendment free speech and

intimate association rights were violated when she was

denied a promotion after her father published an article in

the local newspaper that criticized the school board and its

superintendent. Id. at 1207-08. The Eleventh Circuit held

that the government was entitled to qualified immunity

because it was not clearly established at the time of the

had made out a viable retaliation claim based on her son’s First

Amendment activity); Quesnoy v. Oregon, No. 10-cv-1538, 2011 WL

5439103, at *11 (D. Or. Nov. 4, 2011) (“A retaliatory act taken against a

person because of the spouse’s conduct violates the First Amendment

right of intimate association.”) (citing Adler, 185 F.3d at 44); Roberts v.

Ferry County, No. CV-07-149, 2008 WL 5121606, at *5, *7 (E.D. Wash.

Dec. 5, 2008) (finding Adler persuasive and denying summary judgment

on plaintiff’s First Amendment intimate association claim that defendant

retaliated against her based on her husband’s conduct); Gray v. Bruneau-

Grand View Sch. Dist. 365, No. CV-06-069, 2007 WL 1381785, at *1

(D. Idaho Mar. 27, 2007) (agreeing with Adler that plaintiff’s claim of

retaliation on the basis of her spouse’s objection to school district policy

should be analyzed as a violation of the First Amendment right of

intimate association); see also Lewis v. Eufaula City Bd. of Educ., 922 F.

Supp. 2d 1291, 1302-04 (M.D. Ala. 2012) (holding that a daughter

“raised a viable question of fact as to whether she was not rehired

because of her association with her father and his speech,” in violation

of the First Amendment); Everitt v. DeMarco, 704 F. Supp. 2d 122, 134-

35 (D. Conn. 2010) (denying summary judgment on couple’s First

Amendment intimate association claim because plaintiffs marshaled

enough evidence that public employee was disciplined for his wife’s

speech); Fannon v. Patterson, No. 13-cv-14, 2014 WL 4273337, at *4

(S.D. Ohio Aug. 29, 2014) (recognizing that plaintiff asserted a

potentially viable First Amendment retaliation claim on the basis of his

perceived association with his parents’ speech).

18 DEFRANCESCO V. ROBBINS

alleged misconduct that the First Amendment prohibited

adverse action against a public employee because of her

father’s protected speech or based on her familial

relationship with her father. Id. at 1212-14.

Gaines is of mixed relevance here. It supports the notion

that U.S. Supreme Court precedent had not clearly

established the constitutional right at issue (at least as of

2013, when the relevant events in Gaines took place). And it

specifically emphasizes that Thompson, which “is not a First

Amendment case,” did not “‘clearly establish’ that what [the

government] did ran afoul of the constitution.” Id. at 1211.

On the other hand, Gaines acknowledges that the First

Amendment generally protects a public employee’s right to

intimate association from government reprisal, although the

Eleventh Circuit did not pass on the underlying

constitutional merits of the specific claims before it and

rested its decision on the “more narrow” clearly established

prong of the qualified immunity analysis. Id. at 1213. Also,

to the extent the Eleventh Circuit applies a more restrictive

standard than we do in determining whether a constitutional

right has been clearly established,6 its qualified immunity

analysis is not entirely applicable in this circuit.

Smith v. Frye, a Fourth Circuit case Dake and Robbins

cite as undermining doctrinal support for DeFrancesco’s

antiretaliation protection, is inapposite. 488 F.3d 263 (4th

6

The Eleventh Circuit requires that a plaintiff point to case law from the

“Supreme Court of the United States, the Eleventh Circuit, or the highest

court in the relevant state” to show that a constitutional right was clearly

established, Gaines, 871 F.3d at 1209 (quoting Jones v. Fransen, 857

F.3d 843, 851-52 (11th Cir. 2017)), whereas the Ninth Circuit recognizes

that a constitutional right may be clearly established by a “robust

consensus” of non-binding authority, Tuuamalemalo, 946 F.3d at 477.

DEFRANCESCO V. ROBBINS 19

Cir. 2007). Smith held that a public employee’s First

Amendment right to political association was not violated

where her boss terminated her because of her son’s political

activity. Id. at 267-71. The court in Smith was not persuaded

that there had been a constitutional violation, primarily

because the employee’s boss was “detach[ed] from the

political process at play.” Id. at 271. In the Smith court’s

view, the facts did not give rise to a reasonable inference that

Smith was terminated as punishment for anyone’s

expressive conduct or political affiliation.

Still, there was enough uncertainty among appellate and

district courts by June 2019 that the First Amendment

protection from retaliation for a family member’s speech

was not “beyond debate.” al-Kidd, 563 U.S. at 741. The

Seventh Circuit had by then “reserve[d]” the question of

whether “a public employer’s refusal to hire a person

because of animosity toward that person’s spouse can []ever

be actionable as a Constitutional claim.” Norman-Nunnery

v. Madison Area Tech. Coll., 625 F.3d 422, 434 (7th Cir.

2010). Other circuits had not considered this issue head-on,

or their unpublished or tangential precedents cast doubt on

the position that the circuit would take with respect to the

kind of First Amendment claim at issue here.7 And some

7

See, e.g., Burge v. Pearl River County, 103 F. App’x 823, 826-27 (5th

Cir. 2004) (“[T]he district court cited no decisional authority, and we are

aware of none, to suggest that a right to raise a First Amendment claim

based on a third party’s ‘public concern’ speech was ‘clearly established’

for qualified-immunity purposes.” (emphasis added)); Rosaura Bldg.

Corp. v. Municipality of Mayaguez, 778 F.3d 55, 67-68 (1st Cir. 2015)

(holding that a company that was denied a government contract “failed

to establish a colorable claim for First Amendment retaliation” where,

among other things, there was a “particularly attenuated relationship

20 DEFRANCESCO V. ROBBINS

district court decisions had held that appellate cases like

Adler, which expressly recognizes a public employee’s First

Amendment protection from retaliation for the protected

activity of his spouse, had not definitively settled the

existence of familial antiretaliation protection under the First

Amendment.8

Furthermore, to the degree DeFrancesco’s antiretaliation

protection is predicated on a First Amendment right to

familial association, see, e.g., Roberts v. U.S. Jaycees, 468

U.S. 609, 617-18 (1984); Keates v. Koile, 883 F.3d 1228,

1236 (9th Cir. 2018), courts have identified ambiguity

between” the company and “the parties exercising First Amendment

rights”—namely, the company’s shareholder’s relatives—and there was

“no allegation that the denial of the [government] contract to [the

company] was designed to or would have any material effect on the

exercise of First Amendment rights by the relatives of shareholders”).

8

See, e.g., Vigil v. Tweed, No. 18-829, 2019 WL 2411740, at *12 (D.N.M.

June 7, 2019) (“Adler is not sufficient to clearly establish a general right

under the First Amendment to be free of retaliation based upon the

conduct of a family member.”); Robbins v. Merrell, No. 15-cv-00156,

2017 WL 1628879, at *5 (D. Utah May 1, 2017) (“Adler sets forth no

clearly-established right applicable here because it does not set forth the

Tenth Circuit, Supreme Court, or majority view.”); Corkern v. Hammond

City, No. 11-1828, 2013 WL 4434417, at *4 (E.D. La. Aug. 14, 2013)

(Adler “hardly constitutes ‘a consensus of cases of persuasive

authority’”); Ballas v. City of Reading, No. 00-CV-2943, 2001 WL

856627, at *4 (E.D. Pa. July 24, 2001) (“[T]he Adler court . . .

acknowledged that the nature and extent of the right to be free of

retaliation based on familial association is ‘hardly clear,’ and that courts

have applied varying standards to determine the scope of such a right,”

and “[f]urthermore, the existence of a single case a different circuit . . .

based upon a new and somewhat amorphous legal theory is insufficient

to clearly establish that right.”).

DEFRANCESCO V. ROBBINS 21

around the constitutional source of that right9 and disagree

about what it would take to establish its violation.10 To be

sure, some ambiguity about the “appropriate ‘home’” for a

constitutional right does not necessarily end the qualified

immunity analysis if the right is otherwise clearly

established in law; “[t]hat there is possible uncertainty as to

the appropriate test does not immunize [a defendant] from

liability.” P.B. v. Koch, 96 F.3d 1298, 1303 n.4 (9th Cir.

1996). But here, the First Amendment protection against

retaliation for a relative’s speech was not otherwise so firmly

delineated by the time of the alleged misconduct that we can

overlook the doctrinal confusion about its source and

content.

In sum, there was no binding precedent that clearly

established DeFrancesco’s constitutional protection from

retaliation by June 2019, when he was ultimately terminated.

And although there was authority favoring the recognition of

the protection DeFrancesco claims here, at the time of his

firing, it was not “settled law” that retaliation against a

9

See, e.g., Matsusick v. Erie Cnty. Water Auth., 757 F.3d 31, 61 (2d Cir.

2014) (describing the “ambiguity of the right to intimate association”);

Adler, 185 F.3d at 42 (explaining that the “nature and extent” of the First

Amendment right of intimate association is “hardly clear”).

10

Compare Muir v. Decatur County, 917 F.3d 1050, 1054 (8th Cir. 2019)

(explaining that the “key question” in a First Amendment right of

intimate association case is “whether the government ‘directly and

substantially interfere[d] with the . . . right to enter and maintain [a]

marital relationship,’” so state action having only a “collateral effect” on

marriage will not amount to a constitutional violation (citation omitted)),

with Gaspers v. Ohio Dep’t of Youth Servs., 648 F.3d 400, 413 (6th Cir.

2011) (noting that in “cases challenging purported acts of retaliation that

affect the right of marriage . . . the loss of a job because of a protected

marital relationship ‘constitutes undue intrusion by the state in that

relationship’” (citations omitted)).

22 DEFRANCESCO V. ROBBINS

public employee for his relative’s speech runs afoul of the

First Amendment. Wesby, 583 U.S. at 63 (quoting Hunter v.

Bryant, 502 U.S. 224, 228 (1991)). As the contours of this

protection were not sufficiently defined in June 2019, the

district court correctly held that Dake and Robbins were

entitled to qualified immunity.

CONCLUSION

We hold today that, whether or not the First Amendment

protects public employees from retaliation for a family

member’s speech, this principle was not clearly established

at the time of DeFrancesco’s termination. We therefore

AFFIRM the district court’s dismissal of DeFrancesco’s

Section 1983 claim.

BERZON, J., concurring:

In August 1953, Air Force reserve officer Milo

Radulovich was at home with his wife and children when

two uniformed men appeared at his doorstep. They were

high-ranking Air Force officials who had come to tell

Radulovich that, after ten years of service, he was being

discharged from the military—but not because of his own

conduct. Radulovich’s commission was instead revoked

because of his “close and continuing association” with his

father, who was accused of subscribing to a pro-Communist

newspaper, and his sister, who had participated in some

political pickets and protests.1 Radulovich fought back,

launching a legal challenge to his termination that resulted

in his reinstatement. He also became a “searing symbol” of

1

Michael Ranville, To Strike at a King: The Turning Point in the

McCarthy Witch-Hunt 3–6 (1997).

DEFRANCESCO V. ROBBINS 23

the “excesses of anti-Communism in the 1950s” when his

story was featured on Edward R. Murrow’s television

program See It Now; the broadcast, some say, marked “the

beginning of the end for the McCarthy era.”2

This case is not nearly as dramatic as Radulovich’s. But

a case’s subject need not be renowned, nor its facts

extraordinary, to take on constitutional significance. At its

core, DeFrancesco’s termination raises the same question as

Radulovich’s: May the government discharge or otherwise

disadvantage a public employee in retaliation for his

relative’s speech?

The First Amendment provides an answer. The “threat

of dismissal from public employment is,” and long has been,

a “potent means of inhibiting speech.” Pickering v. Bd. of

Educ., 391 U.S. 563, 574 (1968). Individuals are likely to

refrain from speaking where the threat is against close

relatives as well as where it is against themselves. The First

Amendment thus, in appropriate circumstances, prohibits

reprisal against a government employee based on his close

relative’s protected speech.

I write separately to explain why that is so. Even though

the familial antiretaliation protection under the First

Amendment was not clearly established at the time of

DeFrancesco’s termination, as our per curiam opinion

concludes, I would reach the first prong of the qualified

immunity analysis and hold that protection is well-grounded

in Supreme Court and Ninth Circuit precedent. I also would

conclude, taking the facts alleged in DeFrancesco’s

2

Douglas Martin, Milo Radulovich, 81, Dies; Symbol of ‘50s Red Scare,

N.Y. Times (Nov. 21, 2007), https://www.nytimes.com/2007/

11/21/us/21radulovich.html; see also Good Night, and Good Luck!

(Warner Independent Pictures 2005).

24 DEFRANCESCO V. ROBBINS

complaint as true and drawing all reasonable inferences in

his favor, that Dake and Robbins violated DeFrancesco’s

constitutional protection against retaliation for his husband’s

speech.

I

I begin by explaining why we should have addressed the

constitutional merits in this case. Courts have “discretion to

decide whether [the full two-step qualified immunity

analysis] is worthwhile in particular cases.” Pearson v.

Callahan, 555 U.S. 223, 242 (2009). But that discretion is

not without bounds. Like any other discretionary judicial

authority, it may not be exercised whimsically. Cf. U.S. v.

Hinkson, 585 F.3d 1247, 1259–61 (9th Cir. 2009). Rather,

the Supreme Court and our court have developed principles

that guide this court in determining whether engaging in the

first-prong analysis is “worthwhile.”

We consider, for instance, whether the court’s guidance

in a particular constitutional area is especially “needed.”

Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602

(9th Cir. 2019) (quoting Mattos v. Agarano, 661 F.3d 433,

440 (9th Cir. 2011) (en banc)). Relatedly, it makes sense to

address the first prong where a decision could “[l]ay down a

marker for future” litigation, Olson v. County of Grant, 127

F.4th 1193, 1203 (9th Cir. 2025), as opposed to where the

“constitutional question is so factbound that the decision

provides little guidance for future cases,” Pearson, 555 U.S.

at 237. The development of constitutional precedent is

“especially valuable with respect to questions that do not

frequently arise in cases in which a qualified immunity

defense is unavailable.” Id. at 236. And there are other, more

pragmatic factors to consider, such as whether the

constitutional questions at issue have been adequately

DEFRANCESCO V. ROBBINS 25

briefed or the “precise factual basis for the plaintiff’s claim”

is hard to identify. Id. at 238–39.

These principles militate decisively in favor of

conducting the first-prong, merits qualified immunity

analysis in this case.

First, setting a constitutional precedent here would be

clarifying for lower courts and “lay down” an important

constitutional “marker” for future cases. Unlike several other

circuit courts, see Per Curiam Opinion at 16; infra at 32–33,

the Ninth Circuit has never squarely addressed whether the

First Amendment protects a public employee from

retaliation for a close relative’s speech. But several district

courts in our circuit have wrestled with this question from

different angles, almost uniformly recognizing some basic

First Amendment protection from retaliation under such

circumstances. See, e.g., Vargas v. City of Tracy, No. 2:22-

cv-01454, 2025 WL 578475 (E.D. Cal. Feb. 21, 2025);

Freeman v. County of Riverside, No. ED CV 18-2171, 2019

WL 7905733 (C.D. Cal. Apr. 5, 2019); Isakhanova v. Muniz,

No. 15-cv-03759, 2016 WL 1640649 (N.D. Cal. Apr. 26,

2016); Quesnoy v. Oregon, No. 10-cv-1538, 2011 WL

5439103 (D. Or. Nov. 4, 2011); Roberts v. Ferry County,

No. CV-07-149, 2008 WL 5121606 (E.D. Wash. Dec. 5,

2008); Gray v. Bruneau-Grand View Sch. Dist., No. CV-06-

069, 2007 WL 1381785 (D. Idaho Mar. 27, 2007).

The fact that district courts regularly grapple with the

constitutional issue presented here suggests that guidance

from our court is needed. We have the opportunity to provide

a benchmark for future cases in this circuit. Also, by trying—

as I attempt later—to provide a careful analysis of the

various strands of pertinent authority, we would help

develop consistent law across circuits. What’s more, the

26 DEFRANCESCO V. ROBBINS

core question raised by this case—whether a public

employee can in some circumstances be protected, under the

First Amendment, from government retaliation for his

relative’s protected speech—is a generic constitutional

issue, not an intensely “factbound” one.

Second, this case presents a question which does not

“frequently arise in cases in which a qualified immunity

defense is unavailable.” Pearson, 555 U.S. at 236. The

question of a public employee’s First Amendment protection

against retaliation for a family member’s speech almost

always arises in the context of a qualified immunity defense.

Although a public employee in DeFrancesco’s situation

could in theory sue for injunctive or declaratory relief, cf.

Evans v. Skolnik, 997 F.3d 1060, 1071 (9th Cir. 2021), in this

kind of retaliation case, plaintiffs overwhelmingly seek

monetary damages after having been disciplined, demoted,

or fired.

Finally, this case presents an acceptable vehicle for us to

provide some initial guidance to lower courts. The

constitutional issues were adequately briefed by the parties,

and the precise factual basis for DeFrancesco’s claim is

developed enough to allow us to set forth a preliminary

framework for First Amendment familial antiretaliation

claims, a framework on which future courts may elaborate.

In short, this case provides an appropriate and important

opportunity for developing Ninth Circuit constitutional

precedent on a recurring, generic legal issue. There will

never be clearly established law on the pivotal and discrete

question before us unless it is addressed in a case—such as

this one—in which it is distinctly and adequately raised. The

result of this vacuum will be that government bodies can

continue to violate the First Amendment when similar

DEFRANCESCO V. ROBBINS 27

circumstances arise, as they will face no adverse

consequences if they do so. It is therefore “worthwhile” to

reach the first prong of the qualified immunity analysis.

In sum, rather than skirting the merits issue, the panel

ought to have considered the contours of the constitutional

protection DeFrancesco invoked and decided whether he

plausibly alleged a violation of that protection. Cf. Sampson

v. Cty. of L.A. ex rel. L.A. Cty. Dep’t of Child. and Fam.

Servs., 974 F.3d 1012, 1023 (9th Cir. 2020). I do so now.

II

DeFrancesco alleges that Robbins and Dake violated the

First Amendment by retaliating against him for his

husband’s whistleblowing speech. The parties disagree

about whether the First Amendment protects spouses or

other close relatives under such circumstances. If it does, the

parties contest whether DeFrancesco’s complaint adequately

alleged that Dake and Robbins violated this constitutional

protection. I address each issue in turn.

A

Under Pickering and its progeny, a public employee’s

prima facie First Amendment retaliation claim has three

elements: (1) constitutionally-protected speech; (2) adverse

employment action; and (3) a showing that the protected

speech was a substantial or motivating factor for the adverse

employment action. Dodge v. Evergreen School Dist. 114,

56 F.4th 767, 776 (9th Cir. 2022). At issue here is whether a

plaintiff who has not himself engaged in First Amendment-

protected speech can invoke First Amendment

antiretaliation protection based on the speech of a close

relative—in this instance, his husband, another public

employee who had worked for the same institution. In my

28 DEFRANCESCO V. ROBBINS

view, such a plaintiff has a “hybrid” First Amendment

retaliation protection “involv[ing] both speech and

associational” elements. See Hudson v. Craven, 403 F.3d

691, 693 (9th Cir. 2005).

The first component of this hybrid First Amendment

right is protected speech. The question at hand is whether the

speech can be that of a close relative of the individual

retaliated against.

“The First Amendment reflects ‘a profound national

commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open.’” Snyder v.

Phelps, 562 U.S. 443, 452 (2011) (quoting New York Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964)). As a general

matter, the First Amendment shields not only those who

actually engage in protected activity but also those whose

protected activity might be chilled due to an unconstitutional

constraint. For example, “[f]acial challenges to overly broad

statutes are allowed not primarily for the benefit of the

litigant, but for the benefit of society—to prevent the statute

from chilling the First Amendment rights of other parties not

before the court.” Sec’y of State v. Joseph H. Munson Co.,

467 U.S. 947, 958 (1984). And, although “[p]arties

ordinarily are not permitted to assert constitutional rights

other than their own” absent a showing of third party

standing, Wasson v. Sonoma Cnty. Junior Coll., 203 F.3d

659, 663 (9th Cir. 2000) (citing NAACP v. Alabama, 357

U.S. 449, 459 (1958)), courts assessing First Amendment

claims often look beyond the directly affected individual and

consider how restrictive government action might

undermine the constitutional interests of other persons—for

instance, listeners, see, e.g., Thunder Studios, Inc. v. Kazal,

13 F.4th 736, 743–44 (9th Cir. 2021) (citing, inter alia, Va.

State Bd. of Pharmacy v. Va. Citizens Consumer Council,

DEFRANCESCO V. ROBBINS 29

Inc., 425 U.S. 748, 756 (1976); Kleindienst v. Mandel, 408

U.S. 753 (1972)), or persons who will be similarly situated

to the plaintiff in the future, see, e.g., Ariz. Students’ Ass’n

v. Ariz. Bd. of Regents, 824 F.3d 858, 868–69 (9th Cir.

2016).

Of particular pertinence here, the Supreme Court has

already widened the First Amendment’s aperture to include

protection for some public employees who have not

themselves engaged in First Amendment-protected speech.

Heffernan v. City of Paterson considered whether a city

could constitutionally demote a police officer based on the

mistaken perception that he had become “overt[ly]

involv[ed]” in a particular mayoral candidate’s campaign

when, in truth, Heffernan was picking up a yard sign for his

bedridden mother. 578 U.S. 266, 269 (2016). Heffernan held

that the demotion violated the First Amendment, as it was

the government’s retaliatory motive—not the employee’s

actual activity—that mattered in assessing the retaliation

claim. Id. at 272–73. “The constitutional harm at issue in the

ordinary [First Amendment retaliation] case consists in large

part of discouraging employees—both the employee

discharged (or demoted) and his or her colleagues—from

engaging in protected activities,” the Court reasoned. Id. at

273. “The discharge of one tells the others that they engage

in protected activity at their peril.” Id.

Here, DeFrancesco did not engage in First Amendment-

protected speech, nor does the complaint allege that Robbins

or Dake believed that he did. But he was allegedly harassed

and fired because of his husband’s protected speech. Such

retaliation undoubtedly would signal to other employees, as

in Heffernan, that “they engage in protected activity at their

peril,” although the direct peril in this instance is harm to

relatives rather than to themselves. Id. And as one district

30 DEFRANCESCO V. ROBBINS

court persuasively put the matter, the constitutional

commitment to open debate “would be severely frustrated if

the First Amendment did not include within its protective

ambit an employee who bears . . . a close relationship with a

person who engages in protected speech” because “[i]f the

government could freely retaliate against such employees,

there would be an ‘obvious chilling effect on free speech.’”

Lewis v. Eufaula City Bd. of Educ., 922 F. Supp. 2d 1291,

1303 (M.D. Ala. 2012) (quoting Reno v. ACLU, 521 U.S.

844, 845 (1997)).

The Supreme Court has recognized a similar danger in

the context of a retaliation suit under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. In Thompson

v. North American Stainless, LP, the Court considered

whether a company violated Title VII’s antiretaliation

provision when it fired plaintiff Eric Thompson because his

fiancée, also an employee of the company, had filed a sex

discrimination charge with the Equal Employment

Opportunity Commission (“EEOC”). 562 U.S. 170, 173

(2011). Like the First Amendment, Title VII protects certain

kinds of employee expression, cf. Coszalter v. City of Salem,

320 F.3d 968, 976 (9th Cir. 2003): An employer may not

discriminate against an employee who “oppose[s] any

practice made an unlawful employment practice” under the

statute, who files a charge with the EEOC, or who

participates in an EEOC proceeding, 42 U.S.C. § 2000e-

3(a). The Thompson Court “ha[d] little difficulty

concluding” that firing a non-speaking employee for his

fiancée’s legally-protected speech ran afoul of Title VII’s

antiretaliation provision. 562 U.S. at 173. “We think it

obvious,” the decision explained, “that a reasonable worker

might be dissuaded from engaging in protected activity if she

DEFRANCESCO V. ROBBINS 31

knew that” a “close family member,” such as a fiancé, would

be fired. Id. at 174, 175.

At the same time, Thompson cautioned that Title VII’s

protection against retaliation is not boundless; otherwise,

“inflicting a mild[] reprisal on a mere acquaintance” of a

protected speaker might trigger liability. Id. at 175. In the

First Amendment context, a similar limitation flows from

another facet of the First Amendment—the freedom of

association—which helps place an outer boundary on the

scope of the constitutional guard against retaliation for

protected speech.

The Supreme Court has referred to the constitutional

freedom of association in “two distinct senses”: (1) as a right

to intimate association, reflecting the freedom to “enter into

and maintain certain intimate human relationships” without

“undue intrusion by the State”; and (2) as a right to

expressive association, reflecting the freedom to “associate

for the purpose of engaging in those activities protected by

the First Amendment—speech, assembly, petition . . . , and

the exercise of religion.” Roberts v. U.S. Jaycees, 468 U.S.

609, 617–18 (1984).

The Fourteenth Amendment is “most often identified” as

the “source” of the right to intimate association. IDK, Inc. v.

Clark County, 836 F.2d 1185, 1192 (9th Cir. 1988); see also

Erotic Serv. Provider Legal Educ. & Rsch. Project v.

Gascon, 880 F.3d 450, 458 (9th Cir. 2018). But the Supreme

Court has made clear that the First Amendment-based right

of association extends to family relationships,

“emphasiz[ing] that the First Amendment protects those

relationships, including family relationships, that

presuppose ‘deep attachments and commitments to the

necessarily few other individuals with whom one shares not

32 DEFRANCESCO V. ROBBINS

only a special community of thoughts, experiences, and

beliefs but also distinctively personal aspects of one’s life.’”

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481

U.S. 537, 545 (1987) (quoting Roberts, 468 U.S. at 619–20).

We have echoed Roberts’s observation that “a single

association may have intimate and expressive features and

therefore be entitled to claim the protection of both the first

and fourteenth amendments.” IDK, Inc., 836 F.2d at 1192;

see also Dible v. City of Chandler, 515 F.3d 918, 929 (9th

Cir. 2008). As the First Amendment protects “family

relationships,” we have “held that claims under both the First

and Fourteenth Amendment for unwarranted interference

with the right to familial association could survive a motion

to dismiss.” Keates v. Koile, 883 F.3d 1228, 1236 (9th Cir.

2018).

Other circuits have also acknowledged that retaliating

against a public employee based on the conduct of his family

member may infringe on the employee’s First Amendment

right to associate with family members. The Second Circuit,

for example, has held that the First Amendment right of

association prevents the state from discharging an employee

“for something as insubstantial as a public employer’s

discomfort about a discrimination lawsuit brought by [that]

employee’s spouse.” Adler v. Pataki, 185 F.3d 35, 44 (2d Cir.

1999). The Sixth Circuit has likewise recognized that firing

a public employee based on her familial relationship may

infringe on the employee’s First Amendment associational

right. See Adkins v. Bd. of Educ., 982 F.2d 952, 953–54 (6th

Cir. 1993); see also Gaspers v. Ohio Dep’t of Youth Servs.,

648 F.3d 400 (6th Cir. 2011); Sowards v. Loudon County, 203

F.3d 426 (6th Cir. 2000). The Eighth Circuit has entertained

a public employee’s claim that a school district violated his

“First Amendment right to associate freely with his wife

DEFRANCESCO V. ROBBINS 33

when [it] changed his schedule in retaliation for her speaking

at [a school] board meeting,” although the court ultimately

concluded that there wasn’t a sufficient causal connection

between his wife’s expression and the adverse employment

action to sustain the claim. Skalsky v. Indep. Sch. Dist. No.

743, 772 F.3d 1126, 1129–31 (8th Cir. 2014). And the

Eleventh Circuit has noted that “a public employee can[not]

be subjected to an adverse employment action for exercising

[her First Amendment] right [to freedom of association].”

Gaines v. Wardynski, 871 F.3d 1203, 1213 (11th Cir. 2017).3

Although federal appellate courts have applied different

standards to First Amendment familial association claims,

see Per Curiam Opinion at 21 n.10, case law supports the

principle that punishing a public employee based on

displeasure with the protected conduct or speech of their

family member is constitutionally problematic.

Weaving together the free speech and freedom of

association strands of the First Amendment would allow this

court to impose a reasonable outer limit on the scope of the

constitutional protection against retaliation for the speech of

a close relative. I would hold, in this case, that a public

employee has a hybrid speech-associational protection

against retaliation for a third party’s First Amendment-

protected speech. Without this rule, a government employer

could exact retribution for protected speech in a way that

impermissibly chills employees’ exercise of their First

Amendment rights. But to rely on this protection, the

3

The Tenth Circuit has also observed, as a general matter, that “[a]ctions

taken by a public official against a public employee because of animosity

for the employee’s spouse can in certain circumstances . . .

unconstitutionally burden the marriage relationship” under the First

Amendment. Morfin v. Albuquerque Pub. Sch., 906 F.2d 1434, 1440

(10th Cir. 1990).

34 DEFRANCESCO V. ROBBINS

employee-plaintiff should have a close familial association

with the protected speaker. Without this limitation,

“prohibiting reprisals against third parties” may “lead to

difficult line-drawing problems concerning the types of

relationships entitled to protection.” Thompson, 562 U.S. at

174.

DeFrancesco is a former public employee who alleges he

was harassed and fired for his husband’s First Amendment-

protected speech; marriage is, of course, “the most intimate

of relationships.” Adler, 185 F.3d at 44. I therefore would

have concluded that DeFrancesco enjoyed some

constitutional protection against workplace retaliation for

his husband’s speech.

B

I next consider whether DeFrancesco’s complaint

plausibly alleged that Robbins and Dake’s actions

transgressed this constitutional protection. As earlier

explained, for a public employee bringing a speech-based

First Amendment retaliation claim under the Pickering

doctrine to state a prima facie case, he must allege:

(1) constitutionally-protected speech; (2) adverse

employment action; and (3) that the protected speech was a

substantial or motivating factor for the adverse employment

action.4 Dodge, 56 F.4th at 776.

4

Ordinarily, for a public employee’s speech to garner First Amendment

protection under Pickering and its progeny, the employee must show,

among other things, that his speech addressed a matter of public concern

and was spoken in his capacity as a private citizen, not as a public

official. See Dodge, 56 F.4th at 777. And once a prima facie showing of

protected speech and retaliation is made, the court engages in balancing

DEFRANCESCO V. ROBBINS 35

As to the first element, the district court concluded that

DeFrancesco’s complaint raised an inference that

Goldman’s alleged whistleblowing speech was

constitutionally protected under the Pickering standard.

Dake and Robbins have expressly declined before this court

to challenge that determination. So I assume its validity for

the purposes of my analysis.

As to the second element, DeFrancesco alleges that he

suffered adverse employment action in the form of a

campaign of harassment and targeting, culminating in

termination. On appeal, Dake and Robbins do not contest

that these activities qualify as adverse employment actions.

to determine whether the government’s legitimate managerial interests

“outweigh[]” the employee’s First Amendment rights. Id. at 781.

Where the state punishes a public employee for his relative’s speech,

it is not clear whether or how each element of the Pickering framework

applies. For example, what if the relative were not himself a public

employee? In that case, I tend to think the public concern test would not

apply (and, of course, the relative’s speech would necessarily be spoken

in his capacity as a private citizen, for he holds no public office). Another

complexity: if the plaintiff makes a prima facie showing of protected

speech and retaliation on that basis, does the subsequent balancing

between the government’s managerial interests and the First Amendment

protection focus on the speaker or the employee retaliated against? I

would think the latter.

Whatever the answers to these questions, I need not, and do not,

resolve these doctrinal intricacies. Goldman and DeFrancesco were

government employees at the same institution, and the parties have

throughout the course of this litigation proceeded on the understanding

that Goldman’s speech must satisfy the full panoply of requirements

under Pickering for DeFrancesco to have a colorable prima facie First

Amendment retaliation claim. I therefore proceed on that understanding

as well.

36 DEFRANCESCO V. ROBBINS

Dake and Robbins do take issue with the third element,

arguing that the complaint does not plausibly allege that

either Dake or Robbins retaliated against DeFrancesco

because of his husband’s protected speech. The “substantial

or motivating factor” element of a First Amendment

retaliation claim “requires the plaintiff to show causation and

the defendant’s intent,” Riley’s Am. Heritage Farms v.

Elsasser, 32 F.4th 707, 721 (9th Cir. 2022), meaning that the

government defendant’s “retaliatory motive” must be a “but-

for” cause of the plaintiff’s injury, Nieves v. Bartlett, 587

U.S. 391, 398–99 (2019). In public employment First

Amendment cases, establishing this causal connection may

be as “straightforward” as evaluating whether “evidence of

the motive and the discharge [i]s sufficient for a

circumstantial demonstration that the one caused the other.”

Id. at 399 (quoting Hartman v. Moore, 547 U.S. 250, 260

(2006)).

DeFrancesco alleges that he had a “stellar employment

record,” “did not receive a single complaint” about his work,

and took on increasing responsibility during his tenure as

Senior Director of Operations at the University of Arizona

Health Sciences (“UAHS”). He also alleges that Dake began

mistreating DeFrancesco soon after starting his new position

as Senior Vice President (“SVP”) at UAHS, which was, in

turn, less than a month after Goldman spoke out about the

irregularities in the hiring process. About a year later, Dake

fired DeFrancesco. The absence of poor performance

reviews, along with the temporal proximity between

Goldman’s protected speech, Dake’s hire, and the targeting

and firing of DeFrancesco, support the inference that Dake

had a vendetta against DeFrancesco based on his husband’s

speech.

DEFRANCESCO V. ROBBINS 37

Further, DeFrancesco alleges that Robbins and Dake had

long been extremely close friends; that Robbins told Dake

that Goldman had been a “vocal and firm advocate against

Dake”; and Robbins also told Dake that Goldman’s husband

“was an executive in UAHS and . . . Dake had the authority

to fire him.” DeFrancesco further alleges a specific instance

when, after refusing to give DeFrancesco the formal title for

the job that he had been effectively performing for more than

two years, Dake told DeFrancesco that he had “‘a decision

to make’ now that [his] husband had left the University.”

DeFrancesco alleged that the “manner, directness and tone

of that statement made it clear to DeFrancesco that Dake

wanted DeFrancesco to leave the University and that

DeFrancesco was not welcome for as long as Dake was the

head of UAHS.” Dake’s comment lends credence to the

inference that Dake was targeting DeFrancesco for reasons

connected to DeFrancesco’s husband’s speech during the

SVP hiring process.

“[P]ut[ting] two and two together,” Keyser v.

Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th

Cir. 2001), these allegations give rise to a reasonable

inference that Dake retaliated against DeFrancesco because

he knew that Goldman had actively advocated against his

candidacy.

Finally, the complaint plausibly alleges that Robbins

participated in the retaliatory campaign against

DeFrancesco. Section 1983 imposes liability both on

persons who deprive a plaintiff of constitutional rights and

on those who “cause[]” the plaintiff “to be subjected” to that

deprivation. Peck v. Montoya, 51 F.4th 877, 888–89 (9th Cir.

2022). A Section 1983 defendant must, of course, be more

than a “mere bystander.” Id. at 889 (citation omitted). Where

an official’s individual actions do not “themselves rise to the

38 DEFRANCESCO V. ROBBINS

level of a constitutional violation,” that official may be held

liable under Section 1983 “only if [he] is an ‘integral

participant’ in the unlawful act.” Id. (citation omitted). There

are at least two scenarios in which an official’s conduct may

render him an “integral participant”: “those in which (1) the

defendant knows about and acquiesces in the

constitutionally defective conduct as part of a common plan

with those whose conduct constitutes the violation or (2) the

defendant ‘set[s] in motion a series of acts by others which

[the defendant] knows or reasonably should know would

cause others to inflict the constitutional injury.’” Id. (quoting

Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978)).

According to the complaint, Robbins was an “integral

participant” in Dake’s retaliation. Robbins told Dake that

Goldman was a vocal and firm advocate against Dake, that

DeFrancesco was a UAHS executive, and that Dake had

authority to fire DeFrancesco. DeFrancesco alleges, on

information and belief, that Robbins relayed this information

with the intent that Dake harass DeFrancesco. The complaint

also avers that Robbins either directly or implicitly

encouraged Dake to retaliate against DeFrancesco, or, at a

minimum, acted with callous disregard as to whether Dake

would do so. Goldman allegedly complained to Robbins on

DeFrancesco’s behalf once Dake’s retaliatory campaign

began, so Robbins was aware of Dake’s targeting of

DeFrancesco. Yet the targeting and harassment did not stop.

Drawing all reasonable inferences in DeFrancesco’s

favor, these allegations plausibly demonstrate that Robbins

knew about and acceded to Dake’s unconstitutional conduct.

Robbins, who had supervisory authority over Dake, was

“made aware of the ongoing violation” of DeFrancesco’s

constitutional rights. Riley’s Am. Heritage Farms, 32 F.4th at

724. He acquiesced in the retaliation by telling Dake about

DEFRANCESCO V. ROBBINS 39

Goldman’s outspokenness, the relationship between

Goldman and DeFrancesco, and Dake’s position of authority

over DeFrancesco. And he “failed to remedy” the situation

by not intervening to end Dake’s retaliatory conduct,

although he knew of the conduct and had the authority to end

it. Id.

As this court acknowledged in OSU Student Alliance v.

Ray, university administrators who are aware of retaliation

and do nothing to stop it can be liable for First Amendment

violations under Section 1983. 699 F.3d 1053, 1075 (9th Cir.

2012). Alternatively, the allegations in the complaint

demonstrate that Robbins “set in motion a series of acts” that

he knew or should have known would cause injury to

DeFrancesco. Peck, 51 F.4th at 891.

In short, DeFrancesco’s complaint adequately alleges a

causal relationship between the Officials’s retaliatory motive

and DeFrancesco’s injury and includes sufficient allegations

to implicate Robbins in the retaliation.

III

In sum, I would have engaged in the first prong of the

qualified immunity analysis, concluding that DeFrancesco

had a First Amendment protection against retaliation for his

husband’s protected speech and that Dake and Robbins

violated that protection. When our court unnecessarily skirts

pressing constitutional questions in qualified immunity

appeals, our jurisprudence becomes stagnant and

unresponsive to litigants’ concerns. In my view, where the

opportunity presents itself to provide much-needed clarity to

the legal community on a general legal question—that is, one

not mired in the facts of a particular dispute—we should

seize the chance to do so, especially when it comes to a

constitutional interest as critical as free speech.

40 DEFRANCESCO V. ROBBINS

The First Amendment “was fashioned to assure

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people.” Lane v.

Franks, 573 U.S. 228, 235–36 (2014) (quoting Roth v. U.S.,

354 U.S. 476, 484 (1957)). “The right to speak freely . . . [is]

one of the chief distinctions that sets us apart from

totalitarian regimes.” Ashton v. Kentucky, 384 U.S. 195, 200

(1966) (quoting Terminiello v. City of Chicago, 337 U.S. 1,

4 (1949)). Although assuredly not absolute, this right is such

a “fundamental principle of the American government” that,

as Justice Brandeis once warned, “order cannot be secured

merely through fear of punishment for its infraction.”

Sullivan, 376 U.S. at 270 (quoting Whitney v. California, 274

U.S. 357, 375–76 (1927) (Brandeis, J., concurring)).

These foundational First Amendment tenets “remain[]

true when speech concerns information related to or learned

through public employment,” and the Supreme Court has

“cautioned time and time again that public employers may

not condition employment on the relinquishment of

constitutional rights.” Lane, 573 U.S. at 236. And these

principles should apply equally when, instead of taking aim

at the protected speaker, the government takes aim at his

family member. As Milo Radulovich’s story shows, modern

history is replete with examples of draconian government

reprisal against kin of suspected dissidents, “subversives,”

or political “enemies.”5 The stakes of this particular case are

5

See, e.g., supra at 1 n.1, 2 n.2; Landon R. Y. Storrs, Red Scare Politics

and the Suppression of Popular Front Feminism: The Loyalty

Investigation of Mary Dublin Keyserling, 90 J. Amer. Hist. 491, 491–92

(2003); see also, e.g., Timothy Snyder, Bloodlands: Europe Between

Hitler and Stalin 72 (2010); Golfo Alexopoulos, Stalin and the Politics

of Kinship: Practices of Collective Punishment, 1920s-1940s, 50 Comp.

DEFRANCESCO V. ROBBINS 41

admittedly not as dire. But if the First Amendment is to be a

bulwark for democracy and against authoritarianism, it must

cast a wide enough net to prevent indirect forms of

retribution that undoubtedly and unjustifiably chill protected

speech.

So: although First Amendment protections for public

employees are subject to well-established constraints, see,

e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006); Connick v.

Myers, 461 U.S. 138 (1983), both logic and law counsel that

a government employer cannot fire or otherwise retaliate

against its employees for no other reason than that it

disapproves of the constitutionally-protected speech of an

employee’s close relative. Should a future opportunity arise

to enshrine this principle in binding Ninth Circuit precedent,

I urge our court to do so.

Stud. in Soc’y & Hist. 91 (2008); Cynthia Hooper, “Terror of Intimacy:

Family Politics in the 1930s Soviet Union,” in Everyday Life in Early

Soviet Russia 65, 70–73 (Christina Kiaer & Eric Naiman, eds., 2005).