football coach fired for engaging in open invitation prayer at 17 midfield following public school games
How later courts described this case
- football coach fired for engaging in open invitation prayer at 17 midfield following public school games
- “[S]urely deprivation of Dr. 10 Foretich's right to be with his own daughter on the basis of a legislative 11 determination of criminal sexual abuse also qualifies” as historical punishment for 12 the purposes of a bill of attainder.
Written by the judges who cited it.
The opinion
1 U.S. F D IL IS E T D R I I N C T T H C E O URT
EASTERN DISTRICT OF WASHINGTON
UNITED STATES DISTRICT COURT
2 EASTERN DISTRICT OF WASHINGTON Sep 30, 2025
3 SEAN F. MCAVOY, CLERK
MATTHEW SHEA, No. 2:25-CV-0031-JAG
4
5 Plaintiff, ORDER DISMISSING
6 CLAIMS 1-5 AND CLAIMS 7-9.
-vs-
7
8 SPOKANE, WASHINGTON, ZACK
ZAPPONE; BETSY WILKERSON;
9 KAREN STRATTON; and LORI
10 KINNEAR, ORDER GRANTED IN PART
AND DENIED IN PART
11
Defendants. (ECF No. 6)
12
13
BEFORE THE COURT is Defendants’ Motion to Dismiss. ECF No. 6.
14
The Court has reviewed the briefing and the Complaint, ECF No. 1, and is fully
15
informed. For the reasons detailed below, Claims 1-5 and Claims 7-9 are
16
dismissed with prejudice.
17
I. INTRODUCTION
18
Defendants seek dismissal of the Complaint pursuant to Fed. R. Civ. P.
19
12(b)(6) for failure to state a claim and based on immunity to all of Plaintiff’s 42
20
U.S.C. § 1983 (“Section 1983”) claims. ECF No. 6. Defendants ask the Court to
21
22 dismiss Plaintiff’s claims as no claim alleged is supported by facts that if proven,
23 could support a finding in Plaintiff’s favor. For the reasons stated below, the Court
24 grants, in part, and denies, in part, Defendants’ Motion to Dismiss.
25 II. BACKGROUND
26 Plaintiff challenges Spokane City Council Resolution 2023-0081 (“the
27 Resolution”). The Resolution formally denounced then-Mayor Nadine
28 Woodward’s actions that “affiliated the City of Spokane and its residents with
former Washington State Representative and identified domestic terrorist, Matt
1
2 Shea, and known anti-LGBTQ extremist Sean Fuecht.” ECF No. 1-1. Plaintiff
3 raises ten claims—six federal claims and four state law claims. Plaintiff claims the
4 Resolution violates his First Amendment rights, is an unlawful bill of attainder,
5 and violates the Washington State Constitution.
6 III. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
7 To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a Complaint must
8 allege sufficient facts to raise the right to relief beyond a speculative level. Bell
9 Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A Complaint provides a
10 defendant notice of the claim(s) being made and the facts a plaintiff asserts support
11
those claims. “Federal Rule of Civil Procedure 8(a)(2) requires only a short and
12
plain statement of the claim showing that the pleader is entitled to relief, in order to
13
give the defendant fair notice of what the ... claim is and the grounds upon which it
14
rests.” Twombly, 550 U.S. at 555 (internal citations omitted). Courts need not
15
accept as true legal conclusions “[t]hreadbare recitals of the elements of a cause of
16
action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662,
17
678 (2009). Only a Complaint that states a plausible claim for relief with well-
18
pleaded facts demonstrating the pleader's entitlement to relief can survive a motion
19
to dismiss. Id. at 679. “The plausibility of a pleading thus derives from its well-
20
pleaded factual allegations.” Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176
21
(9th Cir. 2021).
22
23 IV. ANALYSIS
24 A. Claim 1 – Violation of the Free Exercise Clause – 42 U.S.C. § 1983:
25 The Free Exercise Clause of the First Amendment provides that “Congress
26 shall make no law respecting an establishment of religion, or prohibiting the free
27 exercise thereof ....” U.S. Const. amend I. “At a minimum, the protections of the
28 Free Exercise Clause pertain if the law at issue discriminates against some or all
religious beliefs or regulates or prohibits conduct because it is undertaken for
1
2 religious reasons.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah., 508
3 U.S. 520, 532 (1993).
4 Distilled, Supreme Court authority sets forth three bedrock
requirements of the Free Exercise Clause that the government may
5
not transgress, absent a showing that satisfies strict scrutiny. First, a
6 purportedly neutral generally applicable policy may not have a
mechanism for individualized exemptions. Second, the government
7
may not “treat ... comparable secular activity more favorably than
8 religious exercise.” Third, the government may not act in a manner
9 hostile to ... religious beliefs or inconsistent with the Free Exercise
Clause's bar on even subtle departures from neutrality. The failure
10 to meet any one of these requirements subjects a governmental
11 regulation to review under strict scrutiny.
12 Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82
13 F.4th 664, 686 (9th Cir. 2023). The success of a Free Exercise claim hinges on
14 Governmental action affecting a plaintiff in a regulatory or compulsory manner.
15 See Am. Fam. Ass'n, Inc. v. City & Cnty. of San Francisco, 277 F.3d 1114, 1123–
16 24 (9th Cir. 2002).
17 Plaintiff argues the Resolution must survive strict scrutiny because it is
18 neither generally applicable nor neutral. As in Am. Fam. Ass’n, Inc., Plaintiff,
19
overlook[s] a critical distinction, however: in this case, there is no
20 actual ‘law’ at issue. In fact, there does not appear to be any case in
this circuit applying Smith or Lukumi to some non-regulatory or non-
21
compulsory governmental action—in other words, to something other
22 than an actual law.
23 277 F.3d at 1123–24.
24 Accordingly, based on the foregoing, Plaintiff cannot meet his burden under
25 the Free Exercise Clause “when the challenged government action is neither
26 regulatory, proscriptive or compulsory…” Id. at 1124. Here, the Resolution
27 enacted by the City Council criticized then-Mayor Nadine Woodward’s public
28
appearance with Plaintiff and others in strong terms. The Resolution, however,
regulated nothing, proscribed nothing, and compelled nothing.
1
2 “[P]ublic officials may criticize practices that they would have no
3 constitutional ability to regulate, so long as there is no actual or threatened
4 imposition of government power or sanction.” American Family, 277 F.3d at
5 1125. In Alameda Newspapers, Inc. v. City of Oakland, the Ninth Circuit
6 examined a Resolution issued by the city council in Oakland that was “in essence a
7 declaration of principle or conscience.” 95 F.3d 1406, 1414 (9th Cir. 1996). The
8 Oakland City council announced support for a boycott of the Oakland Tribune
9 during a labor dispute with workers. Id at 1410. The council “urged all citizen of
10 Oakland to stop purchasing and advertising . . . until the labor dispute is
11
successfully concluded.” Id. As in this case, the Oakland Resolution lacked the
12
hallmarks of a law because the resolution was “clearly expressive in nature.” Id. at
13
1414. The Ninth Circuit compared the Oakland Resolution to one addressed in a
14
Fifth Circuit case, finding that the Oakland Resolution did not provide for
15
compulsory fact finding, issuance of a report, nor did the Resolution include “the
16
official assignment of responsibility or blame for its origin and continuation.” Id.
17
Consequently, the Oakland Resolution did not exercise direct coercive power with
18
indirect coercive effect. Id. In other words, the “resolution did not invoke the
19
exercise of a governmental function—the conducting of a formal investigation and
20
the issuance of formal findings. In the words of the Fifth Circuit, the Oakland City
21
Council's resolution was ‘limited to editorial comment.’” Id, at 1414–15.
22
23 The Resolution passed by the Spokane City Council performs the same type
24 of expressive function as the Oakland Resolution. Upon examination of the
25 Oakland Resolution, the Ninth Circuit concluded that, “[e]ven assuming that under
26 some circumstances speech by a governmental agency might attain coercive
27 power, the council resolution at issue does not constitute that type of speech. The
28 resolution here is clearly expressive in nature. It constitutes a declaration of
principle, rather than an exercise of governmental powers.” Id. at 1414. The same
1
2 can be said for the Resolution at issue in this case. The Spokane City Council
3 expressed its collective opinion about Mr. Shea and then-Mayor Nadine
4 Woodward but imposed no further sanction or consequence.
5 Despite Plaintiff’s assertions to the contrary, Supreme Court decisions
6 addressing the Free Exercise Clause did not expand review of government actions
7 to instances where the government speaks for itself in a non-lawmaking capacity.
8 Recent cases honing Free Exercise jurisprudence involve laws passed by the
9 legislature that: (1) directly affected certain religious practice, see Lukumi, 508
10 U.S. 520 (law targeted Santeria practices to prevent worship within the town.); (2)
11
required a person to act in a manner that conflicted with their personal religious
12
beliefs in order to comply with the law, see Masterpiece Cakeshop v. Colorado
13
C.R. Comm'n, 584 U.S. 617 (2018) (equal protection laws required a baker to
14
decorate a cake for a same sex couple’s wedding); or (3) resulted in loss of
15
employment of a public employee, see Kennedy v. Bremerton School District, 597
16
U.S. 507 (2022) (football coach fired for engaging in open invitation prayer at
17
midfield following public school games). The Supreme Court has yet to address
18
whether a toothless legislative resolution aimed at the purported censuring of an
19
executive qualifies as a governmental policy that triggers a violation of the Free
20
Exercise Clause, but precedent addressing the Establishment Clause suggests it
21
would not. In Town of Greece and Marsh, the Supreme Court found that prayer for
22
23 the benefit of elected officials did not impinge on the Establishment Clause
24 because the “prayer is an opportunity for [members of town boards and
25 commissions] to show who and what they are without denying the right to dissent
26 by those who disagree.” Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 587–88
27 (2014).
28
The Resolution represents a policy statement, an instance of the government
1
2 speaking for itself, rather than lawmaking because it lacks the hallmarks of a law.
3 According to Defendant’s, the Resolution “resolves” four issues: (1) criticizing
4 Mayor Woodward for affiliating the City of Spokane with Plaintiff and others; (2)
5 a belief in the separation of church and state and an individual’s right to practice
6 religion freely; (3) reaffirming the City Council’s pledge to accept and serve all
7 citizens of the community and eschewing fear, hatred, violence, and bigotry; and
8 (4) an aspiration to promote belonging in the community. ECF No. 10-1. Like in
9 the Oakland case, the Resolution was limited to editorial comment, specifically,
10 comment on then-Mayor Nadine Woodward’s actions as they reflect on the city of
11
Spokane, affirmation of constitutional principles and affirmation of inclusion. The
12
Resolution did not affect Plaintiff’s religious practice, nor compel Plaintiff to act;
13
in fact, the Resolution made no demands of any kind of Plaintiff. And, of course,
14
Plaintiff—and anyone else—remains free to criticize the Resolution and the
15
wisdom of promulgating the Resolution.
16
Plaintiff argues that the Resolution imposed punishment upon Plaintiff via
17
condemnation of the mayor and the Resolution’s expression of disapproval of
18
Plaintiff’s beliefs. “Offense, however, does not equate to coercion.” Town of
19
Greece, N.Y. v. Galloway, 572 U.S. 565, 589 (2014). Mere legislative expression
20
of disapproval does not run afoul with exercise of constitutional rights without
21
some sort of imposition of governmental power. See, e.g., Penthouse Int'l Ltd. v.
22
23 Meese, 939 F.2d 1011, 1015–16 (D.C.Cir.1991) (public officials entitled to
24 criticize publishers of pornography where letter contained no threat or intimation
25 of intent to prosecute or prescribe publisher's conduct).
26 Ultimately, there is no set of facts Plaintiff can prove to successfully pursue
27 his Free Exercise claim because the Resolution lacks the compulsory power of law.
28 Therefore, the claim shall be dismissed.
1
B. Claim 2 – Violation of the Establishment Clause – 42 U.S.C. § 1983:
2 “‘[W]here the Establishment Clause is at issue,’ the Court must ‘distinguish
3 between real threat and mere shadow.’” Am. Legion v. Am. Humanist Ass'n, 588
4 U.S. 29, 68 (2019) (Breyer, J. joined by Kagen, J., concurring) (quoting School
5 Dist. of Abington Township v. Schempp, 374 U.S. 203, 308 (1963)). An
6 “Establishment Clause violation is not made out any time a person experiences a
7 sense of affront from the expression of contrary religious views in a legislative
8 forum,” rather, a Plaintiff must demonstrate that the government action involves
9 exercises legal coercion. Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 589.
10 “In other words, establishment at the founding involved, for example, mandatory
11
observance or mandatory payment of taxes supporting ministers.” Cutter v.
12
Wilkinson, 544 U.S. 709, 729 (2005) (Thomas, J., concurring in judgment). And
13
“government practices that have nothing to do with creating or maintaining ...
14
coercive state establishments” simply do not “implicate the possible liberty interest
15
of being free from coercive state establishments.” Elk Grove Unified Sch. Dist. v.
16
Newdow, 542 U.S. 1, 53 (2014) (Thomas, J., concurring in judgment).
17
Courts must “interpret the Establishment Clause by ‘reference to historical
18
practices and understandings.’ Going forward, ‘the line that courts and
19
governments must draw between the permissible and the impermissible has to
20
accord with history and faithfully reflect the understanding of the Founding
21
Fathers.’” Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 888 (9th Cir.
22
23 2022) (citing Kennedy v. Bremerton School District, 597 U.S. 507 (2022)). “The
24 Framers understood an establishment “necessarily [to] involve actual legal
25 coercion.” Newdow, 542 U.S. at 52 (Thomas, J., concurring in judgment); see
26 also, Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The
27 coercion that was a hallmark of historical establishments of religion was coercion
28 of religious orthodoxy and of financial support by force of law and threat of
penalty”). In our society, “[a]dults often encounter speech they find disagreeable;
1
2 and an Establishment Clause violation is not made out any time a person
3 experiences a sense of affront from the expression of contrary religious views in a
4 legislative forum.” Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 589.
5 “Simply having religious content or promoting a message consistent with a
6 religious doctrine does not run afoul of the Establishment Clause.” Van Orden v.
7 Perry, 545 U.S. 677, 690 (2005). To establish a claim Plaintiff must prove that the
8 Resolution exercised actual legal coercion through the threat of penalty, not merely
9 a sense of affront. Id.
10 Plaintiff claims the Resolution “tends to establish an acceptable state
11
religion or religious faith,” “determines what is orthodox” in Spokane, and
12
“exercised governmental power to compel religious observance,” but fails to cite a
13
single provision of the Resolution that does any of those things. ECF No. 1-1; see
14
also ECF No. 9. The Resolution pledges that the Council will “accept and serve all
15
citizens of our community, regardless of race, religion, color and sexual identity;
16
and will never accept ideologies that promote fear, hatred, violence, and bigotry.”
17
ECF No. 10-1. The Resolution recites the Spokane City Council’s collective
18
pledge to “never accept” certain ideologies, but the Resolution does not state nor
19
imply that members of the community were required to eschew hate, violence, and
20
bigotry, the Resolution only states that the Spokane City Council does so and
21
intends to serve all members of the community.
22
23 Following recent Establishment Clause jurisprudence, the Court must
24 examine historical practices surrounding ideological Resolutions. Boquist v.
25 Courtney, 32 F.4th 764, 775–76 (9th Cir. 2022). Resolutions expressing
26 displeasure with the executive branch and on policy issues enjoy a long history.
27 See Houston Community College System v. Wilson, 595 U.S. 468, 474 - 77, (2022)
28 (Court details this history of censure of the executive by members in the context of
free speech claims.) “Since 1800, Members of the House and Senate have
1
2 introduced resolutions of censure against at least 12 sitting Presidents.”
3 Resolutions to Censure the President: Procedures and History, Christopher M.
4 Davis and Jan A. Hudiburg, February 1, 2021, https://www.congress.gov/crs-
5 product/R45087#:~:text=Since%201800%2C%20Members%20of%20the,an%20a
6 mendment%20to%20a%20resolution). The legislative branch also may pass
7 resolutions expressing the chambers’ collective opinion about issues political
8 issues that they have no power to enforce. See, e.g., H.Con.Res.9 Denouncing the
9 horrors of socialism (2023).
10 Much like the Free Exercise claim, the Resolution’s lack of regulatory,
11
proscriptive, or compulsory mandate is fatal to the Establishment Clause claim.
12
The Resolution expresses the collective opinion of the Spokane City Council. The
13
Resolution purports to denounce then-Mayor Woodward and expresses the City
14
Council’s collective opinion. Legislative bodies have passed such resolutions
15
since the early days of the Republic to express their collective opinions whether by
16
denouncing a president, railing against socialism, or affirming a welcoming
17
community free of violence. Others in the community are then free to disagree and
18
express their disapproval of all such legislative expressions of opinion.
19
C. Free Speech Claims:
20
The First Amendment provides that “Congress shall make no
21
law…abridging the freedom of speech....” U.S. Const. amend. I. “The Free
22
23 Speech Clause restricts government regulation of private speech; it does not
24 regulate government speech.” Pleasant Grove City, Utah v. Summum, 555 U.S.
25 460, 467 (2009). A plaintiff must allege that the government action complained of
26 burdens protected speech, whether through restricting speech, punishing speech, or
27 chilling people from engaging in speech to state a claim under the First
28 Amendment. Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 890 (9th
Cir. 2022). Plaintiff alleges three claims premised on violations of the Free Speech
1
2 clause: (a) retaliation, (b) compelled speech, and (c) impermissible content/
3 viewpoint restrictions. Notably,
4 [i]f every citizen were to have a right to insist that no one paid by public
funds express a view with which he disagreed, debate over issues of
5
great concern to the public would be limited to those in the private
6 sector, and the process of government as we know it radically
transformed.
7
Keller v. State Bar of Cal., 496 U.S. 1, 12–13, (1990).
8
1. Claim 3 – Retaliation – 42 U.S.C. § 1983:
9
“[A]s a general matter, the First Amendment prohibits government officials
10
11 from subjecting individuals to retaliatory actions after the fact for having engaged
12 in protected speech.” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474
13 (2022). To demonstrate retaliation, Plaintiff must plead and prove that:
14 (1) he engaged in constitutionally protected activity; (2) as a result, he
was subjected to adverse action by the defendant that would chill a
15
person of ordinary firmness from continuing to engage in the protected
16 activity; and (3) there was a substantial causal relationship between the
constitutionally protected activity and the adverse action.
17
Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010).
18
19 Plaintiff pled facts sufficient at this juncture to prove he engaged in
20 constitutionally protected speech, satisfying the first prong.
21 To prove the second prong, Plaintiff must show “that the government took
22 an adverse action in response to his speech that would not have been taken absent
23 the retaliatory motive.” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477.
24 Plaintiff must also demonstrate the adverse action is material. Wilson 595 U.S. at
25 477. Materiality requires Plaintiff to prove a chilling consequence of the speech,
26 “de minimis deprivations of benefits and privileges on account of one’s speech do
27 not give rise to a First Amendment claim.” Boquist v. Courtney, 32 F.4th 764, 776
28
(9th Cir. 2022). The Ninth Circuit has held:
Rather, for adverse, retaliatory actions to offend the First Amendment,
1
they must be of a nature that would stifle someone from speaking out.
2 The most familiar adverse actions are exercises of governmental power
3 that are regulatory, proscriptive, or compulsory in nature and have the
effect of punishing someone for his or her speech.
4
Blair v. Bethel Sch. Dist., 608 F.3d at 544 (internal citations omitted) (cleaned up).
5
Consequently, like in the Free Exercise and Establishment clause claims,
6
Plaintiff must plead facts that prove the exercise of governmental power, i.e. the
7
Resolution, was regulatory, proscriptive, or compulsory in nature. As discussed in
8
the previous claims, Plaintiff cannot meet his burden. Though the Resolution
9
purports to censure or denounce Mayor Woodward, the resolution lacks any
10
11 enforcement provision. Upon examination of the historical record, the Supreme
12 Court concluded that a “purely verbal censure” of another political representative,
13 has never been “widely considered offensive to the First Amendment.” Houston
14 Cmty. Coll. Sys. v. Wilson, 595 U.S. at 475.
15 By criticizing the then-Mayor, the Resolution represents an expression of the
16 collective opinion of the Spokane City Council—an expression of the council
17 member’s Free Speech. When government officials engage in their own
18 expressive conduct “the Free Speech Clause has no application. The government
19
can say what it wishes and select the views that it wants to express.” Nat'l Rifle
20
Ass'n of Am. v. Vullo, 602 U.S. 175, 187 (2024). As the Supreme Court notes:
21
The First Amendment surely promises an elected representative . . . the
22 right to speak freely on questions of government policy. But just as
surely, it cannot be used as a weapon to silence other representatives
23
seeking to do the same. The right to examine public characters and
24 measures through free communication may be no less than the guardian
25 of every other right. And the role that elected officials play in that
process makes it all the more imperative that they be allowed to freely
26
express themselves.
27 Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 478 (internal citations omitted).
28
The Court recognizes that despite the fact the Resolution directs its ire at
1
2 then-Mayor Woodward, Plaintiff felt affronted by the Resolution because it passed
3 judgment on Mayor Woodward for her association with him. Such an affront,
4 however, represents a de minimus incursion not protected by the First Amendment.
5 2. Claim 4 – Compelled Speech – 42 U.S.C. § 1983:
6 “[T]he First Amendment protects an individual's right to speak his mind
7 regardless of whether the government considers his speech sensible and well
8 intentioned or deeply misguided, and likely to cause anguish or incalculable grief.”
9 303 Creative LLC v. Elenis, 600 U.S. 570, 586 (2023). Though the government
10 may speak for itself, the “government may not compel a person to speak its own
11
preferred messages.” Id. A compelled speech violation arises from “the fact that
12
the complaining speaker's own message was affected by the speech it was forced to
13
accommodate.” Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 63
14
(2006). In 303 Creative, the plaintiff complained that public accommodation laws
15
would require her to create websites, a form of speech, that did not conform with
16
her beliefs or face assessment of a fine. Id. at 570. The Supreme Court also
17
recognizes compelled silence as speech. X Corp. v. Bonta, 116 F.4th 888, 900 (9th
18
Cir. 2024), Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781, 796
19
(1988).
20
Here, Plaintiff’s Complaint states that Defendants “sought and continue to
21
seek to coercively compel certain speech,” ECF No. 1-1 at ¶ 393, and “to
22
23 coercively compel this speech to excise and eliminate” Plaintiff’s beliefs from the
24 public dialogue. ECF No. 1-1 at ¶ 397. Plaintiff alleges that he “faces a very real
25 and credible threat that if he continues to practice Christianity and speak his
26 sincerely held Christian beliefs, Defendants will continue to condemn, denounce,
27 or punish him through additional resolutions or even greater forms of sanctions.”
28 ECF No. 1-1 at ¶ 398. The Complaint fails to include facts supporting any of these
assertions. In the briefing Plaintiff clarifies that the claims are twofold: (1) a
1
2 facial challenge of the Resolution as compelled speech; and (2) as applied,
3 Defendants sought to use the city motto to compel speech.
4 Censure of a third party fails to meet the legal definition of compelled
5 speech. See Rumsfeld, 547 U.S. at 63.1 Defendants gave no direction or
6 instruction to Plaintiff regarding the content of his speech in the Resolution. The
7 Resolution did not compel Plaintiff, or anyone else, to do anything. Unlike in
8 Wooley v. Maynard where plaintiffs faced criminal sanctions if they failed to
9 display or covered the “Live Free or Die” motto on their New Hampshire license
10 plate, Plaintiff was not required to agree with, or tacitly approve, the motto or
11
political views of the council members. 430 U.S. 705, 707 (1977). Neither the
12
Resolution nor the motto imposed a sanction or penalized Plaintiff due to his
13
speech.
14
3. Claim 5 – Impermissible Content/Viewpoint Restrictions – 42 U.S.C.
15 § 1983:
16 “Generating public pressure to motivate others to change their behavior is a
17 core part of public discourse, and we are aware of no constitutional right that
18 requires legislators to refrain from such speech or advocacy. In fact, any such right
19
would stand the Constitution on its head by cutting off political discourse.”
20
Kennedy v. Warren, 66 F.4th 1199, 1208 (9th Cir. 2023) (internal citations
21
removed and cleaned up). Government speech runs afoul of Free Speech
22
Content/Viewpoint restrictions when government actors exercise coercive threats
23
24
1 Plaintiff appears to concede this point in the briefing, citing to no case law to
25
26 support his supposition that censure of a third party qualifies as compelling speech
27 or that criticism of his political positions that the Defendants disagreed with at a
28 public meeting qualifies as a punishment or a sanction.
with the intent of controlling the content of speech. Kennedy, 66 F.4th at 1209. As
1
2 the Supreme Court notes:
3 To state a claim that the government violated the First Amendment
through coercion of a third party, a plaintiff must plausibly allege
4
conduct that, viewed in context, could be reasonably understood to
5 convey a threat of adverse government action in order to punish or
suppress the plaintiff ’s speech.
6
Nat'l Rifle Ass'n of Am. v. Vullo, 602 U.S. at 191. To establish a claim of
7
impermissible content and viewpoint-based restrictions, Plaintiff must demonstrate
8
that the Government coerced rather than persuaded a third-party. Kennedy v.
9
Warren, 66 F.4th 1199, 1209 (9th Cir. 2023). See also, Nat'l Rifle Ass'n of Am. v.
10
11 Vullo, 602 U.S. at 191. “[R]eputational injury is not itself a reason to prevent
12 government officials from engaging in the rough and tumble of political debate.”
13 Kennedy v. Warren, 66 F.4th at 1206. Criticism of speech is insufficient to state a
14 claim where there was no sanction or threat if Plaintiff continued to preach his
15 beliefs. Am. Fam. Ass'n, Inc. v. City & Cnty. of San Francisco, 277 F.3d 1114,
16 1125 (9th Cir. 2002).
17 Plaintiff challenges both the Resolution and the ordinance designating
18 Spokane’s motto based on content / viewpoint restrictions but fails to plead facts
19
supporting any type of sanction, threat, or coercion. Plaintiff alleges that
20
“Defendants’ use of their actions; the enactment of the Resolution; and of Spokane
21
City Ordinance C36403 or Spokane Municipal Cod 01.03.030 (as applied) as a
22
basis to restrict speech discriminates based upon content and viewpoint.” ECF
23
No. 1-1, ¶ 408. This confusingly worded bare allegation contains no factual
24
support. The briefing clarifies that Plaintiff views the “Resolution is a censure
25
sanction” that restricts Plaintiff’s viewpoint “by working to deprive him of his
26
association and petition rights with government officials.” ECF No. 9, at 19.
27
As discussed above, censure or denouncing a third party exercises de
28
minimis effect on Plaintiff’s speech. Plaintiff’s right to association and right to
1
2 petition the Government are constitutionally protected, but not alleged as separate
3 claims. Nor did the ordinance or Resolution curtail any of the above rights.
4 Rather, the Resolution expressed the collective opinion of the council members,
5 which represents expressive speech of the government which is constitutionally
6 protected. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009).
7 Government officials may criticize so long as they do not coerce. Kennedy v.
8 Warren, 66 F.4th 1199, 1211 (9th Cir. 2023).
9 D. Claim 6 –Bill of Attainder – 42 U.S.C. 1983:
10 Plaintiff argues that labeling him as an “identified domestic terrorist” in a
11
resolution censuring former Mayor Woodward equates to an unlawful Bill of
12
Attainder. In the Complaint, Plaintiff argues the Resolution also imposes
13
punishment as well as the threat of future punishment. ECF No. 1.1. Plaintiff
14
asserts that “[a]s a result of Defendants’ actions” and the critical description of him
15
coupled with the denouncement in the Resolution Plaintiff “was prohibited from
16
accessing publicly accessible areas of Spokane City Hall building.” ECF No. 1-1
17
at 54. Further, the Resolution “provides for direct or indirect banishment of
18
[Plaintiff] from Spokane…” Id. Plaintiff’s Complaint also alleges in several
19
paragraphs that Defendants “label-lynched” Plaintiff in a variety of ways. In the
20
briefing, Plaintiff argues the censure of then-Mayor Woodward coupled with the
21
“label-lynching” marked Plaintiff with a brand of disloyalty, infamy, or outlawdry,
22
23 or a brand of opprobrium which qualifies as a form of punishment.
24 Three key features brand a statute a bill of attainder: (1) the statute specifies
25 the affected person[s]; (2) the statute inflicts punishment; and (3) the statute does
26 so without a judicial trial. SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d
27 662, 668–69 (9th Cir. 2002). Plaintiff’s Complaint clearly asserts facts supporting
28 the first and last features of a bill of attainder: the Resolution names him
specifically and no judicial trial occurred. The Court must then determine whether
1
2 the facts in the Complaint support a finding that the Resolution imposed
3 punishment. To determine whether a bill imposes a punishment, the courts have
4 examined: (1) traditional / historical punishments; (2) applied a functional test to
5 determine whether a bill imposes punishment; and (3) inquired “whether the
6 legislative record evinces a congressional intent to punish.” Nixon v. Adm'r of
7 Gen. Servs., 433 U.S. 425, 478, (1977).
8 Punishments that have historically qualified as a bill of attainder include
9 death, imprisonment, banishment, and/or punitive taking of personal property. Id.
10 at 474. Plaintiff’s Complaint alleges he has been subject to banishment.
11
Banishment has traditionally been associated with deprivation of
12 citizenship, and does more than merely restrict one's freedom to go or
remain where others have the right to be: it often works a destruction
13
of one's social, cultural, and political existence. It describes an ouster
14 from the individual's home city, country, or territory.
15 SeaRiver, 309 F.3d at 673. According to “Black's Law Dictionary ‘banishment’ is
16 defined as ‘a punishment inflicted upon criminals, by compelling them to quit a
17 city, place, or country, for a specific period of time, or for life.” United States v. Ju
18 Toy, 198 U.S. 253, 269–70 (1905). “[B]anishment is a punishment, and of the
19
severest sort,” United States v. Ju Toy, 198 U.S. 253, 273 (1905).
20
Though the Resolution contains no language amounting to banishment, at
21
this stage of the pleadings, the Court cannot say that there are no facts supporting
22
Plaintiff’s claims. Plaintiff’s Complaint alleges the Resolution marked a brand of
23
opprobrium or infamy on him which he argues also qualifies as a historical
24
punishment. Specifically, Plaintiff finds fault with the portion of the Resolution
25
describing him as an “identified domestic terrorist.” Plaintiff appears to use the
26
term “label lynching” as a proxy for the concept of brand of infamy or opprobrium.
27
The Supreme Court has made clear that a formal legislative
28
announcement of moral blameworthiness or punishment” is not
1
necessary to an unlawful bill of attainder. All that is necessary is that
2 the legislative process and the law it produces indicate a congressional
3 purpose to behave like a court and to censure or condemn.
4 Foretich v. United States, 351 F.3d 1198, 1226 (D.C. Cir. 2003) (internal citations
5 omitted). Foretich recognized that a law may be invalidated as an unlawful bill of
6 attainder “where its effect is to mark specified persons with a brand of infamy or
7 disloyalty.” Id. at 1219. In Foretich, Congress labeled Dr. Foretich as a sex
8 offender and stripped his parental rights in a bill, despite court proceedings
9 consistently clearing Dr. Foretich of any abuse. Id. (“[S]urely deprivation of Dr.
10 Foretich's right to be with his own daughter on the basis of a legislative
11 determination of criminal sexual abuse also qualifies” as historical punishment for
12
the purposes of a bill of attainder.)
13
The Resolution in this case declared Plaintiff to be an “identified” domestic
14
terrorist, presupposing a legal conclusion not made in a court of law. Plaintiff
15
argues that the Resolution tarnishes his reputation to the extent that it qualifies as
16
punishment for the purposes of an unconstitutional bill of attainder. Reputational
17
injury alone is sufficient for standing, and at this point of the case, a sufficient
18
factual allegation of punishment to survive a motion to dismiss. Foretich, 351
19
F.3d at 1211. In combination with the alleged banishment, Plaintiff has pled
20
sufficient facts to support his claim of an unlawful bill of attainder.
21
Applying the functional test, the Supreme Court has analyzed “whether the
22
law under challenge, viewed in terms of the type and severity of burdens imposed,
23
reasonably can be said to further nonpunitive legislative purposes.” Id. at 475 –
24
25 76. Although “the severity of a sanction is not determinative of its character as
26 punishment,” Selective Serv. Sys. v. Minnesota Pub. Int. Rsch. Grp., 468 U.S. 841,
27 851–52 (1984), if the legislative act “furthers a nonpunitive legislative purpose, it
28 is not a bill of attainder.” SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d
662, 674 (9th Cir. 2002). As discussed above the Resolution served the purpose of
1
2 sharing the collective opinion of the Spokane City Council and censured then-
3 Mayor Woodward. The Resolution imposes no direct burden on Plaintiff. The
4 Resolution tells him to do nothing, it restricts nothing, and requires nothing of him.
5 Lastly, the Court examines the record to evince legislative intent to
6 determine whether the Council intended to impose a punishment on Plaintiff. As
7 discussed above, the facts contained in Plaintiff’s Complaint outlining the
8 legislative history of the Resolution clearly illustrates the nonpunitive motive of
9 expressing the collective opinion of the city council that anti-LGBTQ rhetoric is
10 antithetical to the welcoming inclusive motto of the city. However, as outlined in
11
the Complaint, the legislative history also illustrates that certain council members
12
strongly disagreed with Plaintiff, particularly his anti-government actions.
13
Accordingly, at this stage of the proceedings, the Complaint has alleged
14
sufficient facts to survive a motion to dismiss.
15
E. Claims 7 through 10 – State Law Claims:
16
“Washington courts have consistently rejected invitations to establish a
17
cause of action for damages based upon constitutional violations without the aid of
18
augmentative legislation.” Blinka v. Washington State Bar Ass'n, 109 Wash. App.
19
575, 591 (2001). Plaintiff tacitly acknowledges this point but asks the Court to
20
certify the question to the Washington State Supreme Court. The Court declines
21
the invitation. As no cause of action exists, the state constitutional law claims are
22
23 dismissed with prejudice.
24 F. Defenses:
25 Defendants pose two potential shields from liability, qualified immunity and
26 legislative immunity. At this juncture, the Court requires further development of
27 the factual record determine whether one or both defenses apply. The Court
28 reserves decision on applicability of these defenses.
1 Vv. CONCLUSION
2 Plaintiff's Complaint fails to state any First Amendment claim or state
3|| constitutional claim. Therefore, those claims, Claims 1-5 and Claims 7-10, are
4|| dismissed with prejudice. The facts stated in the Complaint are sufficient to
5|| survive Defendant’s motion to dismiss the claim of unlawful bill of attainder at this
6|| stage of the proceedings. The claim seeking declaratory judgment is partially
7|| premised on the bill of attainder claim and shall also remain pending. The Court
8|| defers ruling on the immunity defenses until further factual inquiry occurs.
9 Accordingly, IT IS HEREBY ORDERED:
10 1. Defendants’ Motion to Dismiss for Failure to State a Claim, ECF
1] No. 6, is GRANTED, in part, DENIED, in part:
12 a. The Court GRANTS Defendants’ motion to dismiss Claims 1-5
13 and Claims 7—9 and those Claims are DISMISSED WITH
PREJUDICE.
b. The Court DENIES Defendant’s motion to dismiss Claim 6.
: 2. Defendant’s Motion to Consolidate Cases, ECF No. 8, is DENIED
13 AS MOOT.
19 IT IS SO ORDERED. The District Court Executive is directed to file this
0 Order and provide copies to counsel.
21 DATED September 30, 2025.
23 JAMES A. GOEKE
24 UNITED STATES MAGISTRATE JUDGE
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