The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 29, 2026 Decided September 4, 2026
No. 24-7168
ERIC J. FLANNERY AND DRANE FLANNERY RESTAURANT,
LLC, TRADING AS BIG BOARD,
APPELLANTS
v.
MARK ECKENWILER, IN HIS PERSONAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-02804)
David L. Rosenthal argued the cause for appellants. With
him on the briefs were Robert Alt, David C. Tryon, and Patrick
Strawbridge.
Chris E. Mendez, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With him on the brief were Brian L.
Schwalb, Attorney General, Caroline S. Van Zile, Deputy
Solicitor General, Ashwin P. Phatak, Principal Deputy
Solicitor General, and Thais-Lyn Trayer, Deputy Solicitor
General. Stacy Anderson, Assistant Attorney General,
entered an appearance.
2
Before: PILLARD, CHILDS, and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.
GARCIA, Circuit Judge: Eric Flannery owns and operates
The Big Board, a Washington, D.C. bar and restaurant. When
the District imposed masking and proof-of-vaccination
requirements due to the COVID-19 pandemic, Flannery
publicly criticized those policies and The Big Board refused to
comply with them. Months after the District lifted the
requirements, Advisory Neighborhood Commission 6C (ANC
6C) formally opposed renewal of The Big Board’s liquor
license. Flannery and The Big Board sued, alleging that the
members of the Commission violated the First Amendment by
opposing the renewal in retaliation for Flannery’s public
criticism and his restaurant’s noncompliance with the District’s
policies.
The district court dismissed the complaint, concluding that
The Big Board’s refusal to comply with the orders was not
expressive conduct protected by the First Amendment and that
the complaint failed to plausibly allege that Flannery’s
protected speech caused the Commission’s protest. We agree
with the first conclusion but not the second. We therefore
reverse and remand.
I
Because we are addressing the grant of a motion to
dismiss, “[w]e recount the facts as presented in the complaint,
accepting them as true.” Doe 1 v. Apple Inc., 96 F.4th 403,
406 (D.C. Cir. 2024).
In late 2021, amid a surge in COVID-19 cases, District of
Columbia Mayor Muriel Bowser issued emergency orders
requiring indoor masking and proof of vaccination at
restaurants and bars. The masking requirement took effect on
December 21, 2021, and applied whenever patrons were “not
actively eating or drinking.” Mayor’s Order 2021-147, 68
3
D.C. Reg. 13,954, 13,957 (Dec. 24, 2021). The proof-of-
vaccination requirement took effect on January 15, 2022.
Mayor’s Order 2021-148, 68 D.C. Reg. 14,222, 14,224, 14,227
(Dec. 31, 2021).
Flannery publicly opposed the orders and The Big Board
did not comply with them. Two days before the proof-of-
vaccination requirement took effect, he posted on one of The
Big Board’s social media accounts that “everyone is welcome”
at his establishment. Compl. ¶ 30. He also criticized the
District’s policies in other social-media posts and “media
interviews.” Compl. ¶¶ 33, 84. Flannery also filed an earlier,
unsuccessful lawsuit against the District challenging the
emergency COVID-19 policies’ enforcement as contrary to due
process and in excess of the District’s authority under the D.C.
Home Rule Act. Compl. ¶ 84; see Flannery v. D.C. Dep’t of
Health, 2023 WL 8716812, at *1 (D.D.C. Dec. 18, 2023). 1
In February 2022, the District suspended The Big Board’s
operating and liquor licenses for alleged violations of the
orders, forcing the restaurant to close temporarily. After the
District lifted the proof-of-vaccination requirement effective
February 15 and the masking requirement effective March 1,
The Big Board paid a license restoration fee and reopened.
Flannery’s criticism and The Big Board’s noncompliance
drew the attention of Mark Eckenwiler, a commissioner on
ANC 6C, a local government body which represents the area
encompassing The Big Board. Eckenwiler posted a series of
messages on social media criticizing The Big Board and
Flannery’s public statements. In one, he shared screenshots of
The Big Board’s posts and wrote: “When you’ve decided to
flout the vaccine mandate taking effect on Jan. 15 at DC bars
1
The district court dismissed that complaint, Flannery, 2023
WL 8716812, at *8, and we affirmed, Flannery v. D.C. Dep’t of
Health, 2025 WL 1093106, at *1 (D.C. Cir. Apr. 8, 2025) (per
curiam).
4
& restaurants, but don’t quite have the stones to say so &
instead resort to anti-vaxxer dog-whistling.” Compl. ¶ 35.
In another, he posted a photograph of the District Health
Department’s closure notice on The Big Board and wrote,
“Play stupid games, win regulatory prizes!” Id.
In October 2022, several months after the policies expired,
The Big Board applied to renew its liquor license. When an
establishment seeks to renew its license, the Alcohol Board
must notify any ANC within 600 feet of the establishment.
See D.C. Code § 25-421(a)(4). 2 That ANC may then file a
formal opposition—known as a “protest”—to the renewal.
See id. § 25-601(a)(4). Although the Alcohol Board remains
the final licensing authority, see id. § 25-201(c)(3), District law
requires agencies to give ANC recommendations “great
weight,” id. § 1-309.10(d)(3)(A). An ANC protest also makes
the renewal application a contested matter, triggering a process
that includes mediation and, if the dispute remains unresolved,
a hearing before the Board. See id. §§ 25-432(b)(2), 25-
444(a), 25-445 to -446.
After receiving notice of The Big Board’s liquor-license
renewal application, ANC 6C began considering whether to
protest the renewal. On November 7, 2022, ANC 6C’s
Alcoholic Beverage Licensing Committee held a public
meeting where it reviewed and discussed The Big Board’s
renewal application. Flannery attended that meeting. During
2
At the time relevant to this case, the District’s Alcoholic
Beverage Control Board received and evaluated license-renewal
applications with the Alcoholic Beverage Regulation
Administration’s assistance. In 2023, those entities were renamed
and reorganized as the Alcoholic Beverage and Cannabis Board and
the Alcoholic Beverage and Cannabis Administration, respectively.
See Medical Cannabis Amendment Act of 2022, § 5, 70 D.C. Reg.
1,582, 1,617 (Feb. 3, 2023). Because the distinction is immaterial
here, we use “Alcohol Board” to refer to the District’s alcohol-
licensing authorities.
5
the discussion of The Big Board’s application, Eckenwiler
stated, “I mean just some of the things [Flannery has] said
publicly, we should go ahead and protest the license.”
Compl. ¶ 43. No other committee member “disagreed or
challenged that statement.” Id. ¶ 44.
Two days later, the full ANC 6C met to consider whether
to protest The Big Board’s liquor-license renewal. At some
point, Commissioner Drew Courtney urged the Commission to
do so because of The Big Board’s “bad behavior in recent
years.” Id. ¶ 11. ANC 6C then voted to file a protest. The
written protest designated Eckenwiler as ANC 6C’s
representative and cited three grounds: “negative effect on real
property values”; “negative impact on the peace, order, and
quiet”; and “negative effect on residential parking needs and
vehicular and pedestrian safety.” Id. ¶¶ 51–52 (cleaned up).
Flannery and counsel for The Big Board repeatedly sought
to resolve the protest, but Eckenwiler refused to discuss the
matter directly with Flannery and was largely unresponsive to
counsel. Despite counsel’s written request, neither
Eckenwiler nor ANC 6C provided any evidence supporting the
protest’s stated grounds. On February 14, 2023, the day
before a scheduled status conference with the mediator
regarding the protest, Eckenwiler sent a proposed settlement
agreement on ANC 6C’s behalf. The proposal would have
required The Big Board to, among other things, close early,
serve food whenever it was open, prohibit live music, eliminate
outdoor seating, and alter its vendors’ delivery times. The Big
Board responded with a revised proposal and explained why
ANC 6C’s terms failed to address the stated protest grounds
and conflicted with The Big Board’s existing license. Neither
Eckenwiler nor anyone else from ANC 6C responded.
Meanwhile, the Alcohol Board investigated the protest’s
allegations, monitoring The Big Board on eight occasions
between February 16 and February 28, 2023. Investigators
observed no Alcohol Board violations, and their report
6
identified no facts supporting the protest’s stated concerns.
The report specifically noted “[n]o [p]eace, order and quiet
issues, no loitering, no trash or parking concerns,” and no
problems with vehicular or pedestrian safety. Id. ¶ 78
(alteration in original).
The matter nevertheless proceeded to mandatory
mediation. At a March 7, 2023, telephonic mediation session,
Eckenwiler appeared on ANC 6C’s behalf, stated that he had
attended “as required,” announced he was “bowing out” after
speaking for less than forty-five seconds, and “hung up without
so much as waiting for a response from the mediator.”
Id. ¶ 75. The following day, ANC 6C voluntarily withdrew its
protest.
Flannery and The Big Board then brought this action
under 42 U.S.C. § 1983 against the ANC 6C commissioners in
their personal capacities. As relevant here, the complaint
alleges that the commissioners filed and prosecuted what
Flannery and The Big Board characterize as a “frivolous
protest” in retaliation for Flannery’s speech and his and The
Big Board’s “refus[al] to obey orders” that they “understood to
be unlawful.” Id. ¶¶ 84–85. The commissioners moved to
dismiss for failure to state a claim and alternatively asserted
qualified immunity. The district court granted the motion
without reaching the qualified immunity defense. Flannery
and The Big Board timely appealed.
II
We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s dismissal of the complaint for
failure to state a claim. See Ho v. Garland, 106 F.4th 47, 50
(D.C. Cir. 2024). We accept the “complaint’s well-pleaded
factual allegations as true and draw all reasonable inferences
in” Flannery and The Big Board’s favor. Id. (quoting N. Am.
Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1249 (D.C. Cir. 2020)).
7
To survive dismissal, the complaint must contain
sufficient facts to state a claim for relief that is “plausible on its
face.” Wash. All. of Tech. Workers v. DHS, 892 F.3d 332, 343
(D.C. Cir. 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). That standard demands more than “labels and
conclusions”: “The factual allegations must be enough to
raise a right to relief above the speculative level” and must
“allow the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (cleaned
up) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); Iqbal, 556 U.S. at 678).
III
The complaint asserts a claim under 42 U.S.C. § 1983,
which provides a cause of action against any person who,
acting under color of District of Columbia law, deprives
another of “rights, privileges, or immunities secured by the
Constitution” or federal law. The constitutional right at issue
here is the First Amendment right to be free from government
retaliation for protected speech. To state a claim, Flannery
and The Big Board must plausibly allege that (1) they “engaged
in” constitutionally protected activity; (2) “the government
took retaliatory action capable of deterring another from the
same protected activity”; and (3) a “causal link” exists between
the protected activity and the adverse action. Comm. on Ways
& Means v. Dep’t of the Treasury, 45 F.4th 324, 340 (D.C. Cir.
2022).
The district court held—and the commissioners do not
dispute on appeal—that Flannery’s social-media posts and
press interviews were protected speech, and that filing the
protest was capable of deterring others from engaging in such
speech. See Flannery v. Eckenwiler, 2024 WL 4345832, at
*5–6 (D.D.C. Sept. 30, 2024). The key questions on appeal
are (1) whether The Big Board’s refusal to comply with the
masking and proof-of-vaccination requirements was also
protected by the First Amendment, and (2) whether, even if not,
8
the complaint plausibly alleges that Flannery’s protected
speech was itself a but-for cause of ANC 6C’s protest, thus
providing the requisite “causal link.”
A
The Big Board’s refusal to follow the District’s orders was
not protected by the First Amendment.
The First Amendment protects more than spoken and
written words. It also protects conduct that is “sufficiently
imbued with elements of communication” to qualify as
expression. Spence v. Washington, 418 U.S. 405, 409 (1974).
But that principle has limits. The Supreme Court has
“rejected the view that conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby
to express an idea.” Rumsfeld v. F. for Acad. & Institutional
Rts., Inc., 547 U.S. 47, 65–66 (2006) (FAIR) (cleaned up)
(quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)).
Instead, we must ask whether, in context, the conduct is
“inherently expressive.” Id. at 66. As the Court put it in
Clark v. Community for Creative Non-Violence, 468 U.S. 288
(1984), conduct qualifies for constitutional protection if it “is
intended to be communicative and . . . , in context, would
reasonably be understood by the viewer to be communicative.”
Id. at 294; see also Texas v. Johnson, 491 U.S. 397, 405 (1989)
(emphasizing that the Court “consider[s] the context in which”
the conduct occurred).
That inquiry does not require observers to be able to
discern “a narrow, succinctly articulable message” the actor
intends to convey. Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995). Thus,
Jackson Pollock’s abstract drip paintings, for example, remain
“unquestionably shielded” expression even though they may
not convey a readily identifiable message. Id. But a
reasonable viewer must still be able to understand the conduct,
in context, as communicating a message of some kind. See
9
Clark, 468 U.S. at 294. When, by contrast, observers would
have “no way of knowing” whether conduct is communicative
without additional “explanatory speech,” that is strong
evidence that the conduct is not “inherently expressive.”
FAIR, 547 U.S. at 66.
FAIR is instructive. There, law schools denied military
recruiters access to campuses in protest of the government’s
“Don’t Ask, Don’t Tell” policy, forcing the recruiters to
conduct interviews elsewhere. 547 U.S. at 52–53. The law
schools argued that their conduct was inherently expressive
because they intended to convey opposition to the
government’s policy. Id. The Court disagreed. An observer
who saw military recruiters interviewing away from a law
school would have “no way of knowing whether the law school
[was] expressing its disapproval of the military, all the law
school’s interview rooms [were] full, or the military recruiters
decided for reasons of their own that they would rather
interview someplace else.” Id. at 66.
Here, we accept as true the complaint’s allegation that The
Big Board refused to comply in order to express opposition to
the District’s policies. The question is whether, given the
surrounding circumstances, reasonable onlookers would have
understood that conduct to be communicative. The
complaint’s allegations do not plausibly support that
conclusion. The complaint alleges nothing about how The
Big Board’s noncompliance would manifest itself to
reasonable observers. It simply alleges that restaurants were
required to enforce masking and check proof of vaccination,
that The Big Board refused to do so, and that the District later
suspended The Big Board’s licenses for violating the orders.
Those allegations do not support an inference that reasonable
observers would understand The Big Board’s conduct as
communicative.
First, consider the masking requirement. The presence of
unmasked patrons could, of course, be visible to an onlooker.
10
But a reasonable observer would not necessarily perceive a
patron going maskless inside the establishment as
communicative. By the terms of the order, patrons were
permitted to remove their masks while actively eating or
drinking. See 68 D.C. Reg. at 13,957. So the mere presence
of unmasked patrons inside a bar or restaurant would not
obviously suggest that anyone was violating the requirement.
And even if a reasonable observer would recognize that
particular patrons were violating the order, it would require
another inferential jump to conclude that such an observer
would likely ascribe an intended message to those patrons’
unmasked status. There are any number of equally, if not
more, plausible reasons someone might have for being
maskless at a given time—they may have forgotten a mask at
home, for example, or simply preferred not to wear one. See,
e.g., Zinman v. Nova Se. Univ., Inc., 2023 WL 2669904, at *5
(11th Cir. Mar. 29, 2023) (explaining that “[t]he likelihood is
exceedingly remote and attenuated” that a reasonable observer
would understand a person’s “unmasked status as an attempt to
convey some sort of message”); see also Falcone v. Dickstein,
92 F.4th 193, 208 n.10 (3d Cir. 2024) (collecting cases).
In fact, The Big Board’s claim is weaker still, because it
would require yet another, even more improbable inference for
a reasonable observer of maskless patrons to conclude that The
Big Board itself intended to convey an expressive message.
There are myriad non-expressive reasons an establishment
might choose not to enforce a masking requirement, ranging
from indifference and lax oversight to a reluctance to initiate
confrontations with paying customers. The complaint alleges
no facts suggesting that a reasonable observer would,
notwithstanding these alternative explanations, understand The
Big Board’s conduct to be “inherently expressive.” FAIR, 547
U.S. at 66.
The proof-of-vaccination requirement is even less suited
to an expressive-conduct theory. The average observer could
11
not know whether The Big Board checked vaccination cards
merely by seeing patrons inside. And even if they could, that
observation alone would not reveal that The Big Board was
declining to check vaccination cards as a deliberate protest,
rather than simply overlooking or inconsistently enforcing the
requirement. Again, the complaint alleges no observable
practice from which objectively reasonable viewers would
understand that The Big Board was communicating opposition
to the District’s policy or any other expressive message. It
alleges only that The Big Board did not comply with the
requirement. Compl. ¶ 84.
Flannery and The Big Board’s contrary arguments do not
overcome those deficiencies. First, they invoke the broader
pandemic context, arguing that refusing to wear a mask was
widely understood at that time as protest, and that a restaurant’s
refusal to enforce masking and vaccination requirements
would have been too. Those arguments are not supported by
any allegations in the complaint. And in any event, the
broader controversy over such requirements does not suffice to
suggest to the objective onlooker that The Big Board was
engaging in expressive conduct.
Flannery and The Big Board also emphasize Eckenwiler’s
reaction to The Big Board’s conduct: By describing The Big
Board’s defiance of the orders as “anti-vaxxer dog-whistling,”
Flannery and The Big Board contend, Eckenwiler showed that
the conduct was reasonably understood as expressive. But
Eckenwiler’s reaction does not establish that reasonable
observers of The Big Board’s operating practices would
understand them as communicative. As discussed below, and
as plaintiffs elsewhere emphasize, Eckenwiler is not an average
observer precisely because he was intimately familiar with
Flannery’s public statements contextualizing The Big Board’s
conduct. To be “inherently expressive,” conduct must be
perceived as communicative without accompanying
12
“explanatory speech.” FAIR, 547 U.S. at 66. The Big
Board’s conduct does not qualify.
We therefore agree with the district court that The Big
Board’s refusal to enforce the requirements was not protected
expressive conduct.
B
The complaint can nevertheless proceed if it plausibly
alleges that Flannery’s social media posts and press interviews
criticizing the District’s policies—which everyone agrees are
protected speech—caused ANC 6C to file the protest. It does.
At the motion-to-dismiss stage, a First Amendment
retaliation plaintiff must plausibly allege but-for causation—
that is, that the challenged action “would not have been taken
absent the retaliatory motive.” Comm. on Ways & Means, 45
F.4th at 340 (quoting Nieves v. Bartlett, 587 U.S. 391, 399
(2019)). The existence of another motive for the challenged
action does not necessarily defeat but-for causation. The
question is whether the government would have taken the same
action “even in the absence of the protected conduct.” Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977). Here, the inquiry is whether the complaint’s
allegations support a reasonable inference that ANC 6C would
not have filed the protest if Flannery had not publicly criticized
the District’s orders.
The complaint’s strongest support for that inference is
Eckenwiler’s public statement just days before the protest vote.
The complaint alleges that when ANC 6C’s Alcoholic
Beverage Licensing Committee considered The Big Board’s
renewal application at its November 7, 2022, meeting, “Mr.
Eckenwiler stated that The Big Board’s license should be
revoked because, ‘I mean just some of the things he’s said
publicly, we should go ahead and protest the license.’”
Compl. ¶ 43. Per the complaint, no other committee member
disagreed with or challenged Eckenwiler’s statement.
13
Id. ¶ 44. Two days later, the full ANC 6C voted to file the
protest. Id. ¶ 48. Those allegations, and reasonable
inferences drawn from them, link the decision to file the protest
to Flannery’s speech in emphatic fashion. In effect, the
allegation is that the Commission member taking the lead on
this issue said, at a public meeting, “We should file a protest
because of Flannery’s protected speech,” and the Commission
did so just two days later. A smoking gun is typically harder
to find.
The complaint’s other allegations further support a
reasonable inference that Flannery’s protected public criticism
was a necessary cause of the protest. ANC 6C’s protest cited
three grounds for protesting The Big Board’s license, but the
Alcohol Board allegedly found no evidence substantiating any
of those concerns, despite monitoring The Big Board on eight
separate occasions. Compl. ¶¶ 77–78. Further, Eckenwiler’s
alleged conduct during the settlement and mediation process,
construed in the plaintiffs’ favor, reflected no genuine interest
in pursuing the stated grounds for objecting to license renewal:
He refused to engage meaningfully with Flannery or counsel,
failed to provide evidence that supported the protest, and
abruptly left a mandatory mediation session after speaking for
less than forty-five seconds. Compl. ¶¶ 55–76. Those
allegations suggest that the protest’s stated grounds were
pretextual—or, as the district court put it, “flimsy,”
“unsupported,” and “quite troubling.” Flannery, 2024 WL
4345832, at *1. Combined with Eckenwiler’s public
statement linking the protest to Flannery’s speech, those
allegations support a reasonable inference that protected
speech was a but-for cause of ANC 6C’s action.
The commissioners’ contrary arguments lack merit. In an
attempt to blunt the impact of Eckenwiler’s statements at the
November 7 meeting, the commissioners argue that the
complaint does not support attributing Eckenwiler’s alleged
motive to the other five commissioners, who all voted to file
14
the protest. We disagree. Eckenwiler made his statement at
an official ANC meeting concerning whether to file a protest
and, the complaint alleges, “[n]one of the other committee
members disagreed or challenged that statement.”
Compl. ¶ 44. He was also the ANC’s “chairman,” id. ¶ 49; he
“led” the ANC in voting to file a protest just two days later, id.;
and he was listed as the ANC’s representative on the protest,
id. ¶ 52. Further, as explained above, the flimsiness of the
stated grounds for the protest bolsters the inference of an
improper motive; that rationale applies to the full Commission,
not just Eckenwiler. As a whole, these allegations support a
reasonable inference that Eckenwiler’s retaliatory motive
infected the full Commission’s vote. Discovery may of course
reveal that particular commissioners were unaware of
Eckenwiler’s statements, acted on independent motives, or that
the complaint’s allegations are untrue for other reasons. But
the complaint need not rule out those speculative possibilities
at the pleading stage.
The commissioners also argue that Flannery and The Big
Board pleaded themselves out of court by alleging that the
ANC was also motivated to file the protest because of The Big
Board’s conduct, which we have held is not protected First
Amendment activity. They focus on the complaint’s
allegation that another commissioner pushed to file the protest
based on The Big Board’s “bad behavior in recent years.”
Compl. ¶ 11. The district court agreed. Flannery, 2024 WL
4345832, at *7. But the reference to “behavior” is
ambiguous—in context, it could refer to The Big Board’s
refusal to comply with the public-health orders, or it could also
refer to Flannery’s repeated public criticism of the orders. As
any parent knows, in common usage a critique of someone’s
“behavior” can include his or her speech. At the pleading
stage, we read those ambiguities in plaintiffs’ favor. See Ho,
106 F.4th at 50. And even assuming that this commissioner’s
statement referred exclusively to The Big Board’s non-
expressive conduct, that would only suggest that ANC 6C had
15
an additional motive for filing the protest. It does not rebut
the reasonable inference that the Commission would not have
filed the protest “in the absence of” Flannery’s protected
speech. Mt. Healthy, 429 U.S. at 287.
Because the alleged facts support a reasonable inference
that Flannery’s public criticism was a but-for cause of the
protest, the district court erred by dismissing the retaliation
claim for failure to plead but-for causation.
The commissioners invoke qualified immunity as an
alternative basis for affirmance. But the district court did not
reach that issue and we decline to decide it in the first instance.
See Bauer v. Fed. Deposit Ins. Corp., 38 F.4th 1114, 1126 (D.C.
Cir. 2022) (“We are a court of review, not of first view,” and
our “general practice” is to remand issues unaddressed below.
(cleaned up)).
IV
We reverse and remand for further proceedings consistent
with this opinion.
So ordered.