Petition for Writ of Certiorari — Judicial Watch, Inc., Petitioner v. Shirley Weber, California Secretary of State

No. _____

In The

Supreme Court of the United States

_________

JUDICIAL WATCH, INC.,

v.

Petitioner,

SHIRLEY WEBER, in her official capacity as the

Secretary of State of the State of California,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

_________

PETITION FOR WRIT OF CERTIORARI

_________

MICHAEL BEKESHA

Counsel of Record

KATHRYN BLANKENBERG

JUDICIAL WATCH, INC.

425 Third St., S.W., Ste 800

Washington, D.C. 20024

(202) 646-5172

mbekesha@judicialwatch.org

Counsel for Petitioner

Dated: March 5, 2025

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

California Elections Code Section 10.5 requires

the California Secretary of State to mitigate “false or

misleading” online statements regarding the electoral

process. Under this mandate, the Secretary pursued

an extensive course of action against Judicial Watch:

(1) she monitored Judicial Watch’s online protected

speech for months leading up to the 2020 election; (2)

she falsely assessed as misleading Judicial Watch’s

YouTube video discussing election integrity; (3) she

used her close, proactive relationship and statecreated “dedicated pathway” with YouTube to have

the video removed; and (4) she memorialized her

actions in a “Misinformation Tracking Sheet.”

Until this case, every regional circuit had held

that an adverse action in the First Amendment

retaliation context is one that would chill a person of

ordinary firmness from continuing to engage in

protected activity. The Ninth Circuit strayed from its

sister circuits, excising the “chilling effect” inquiry

from the universally accepted standard. It ruled that

the Secretary’s course of action was not adverse, and

therefore not actionable, without defining “adverse

action” or analyzing whether her course of action

would chill a person of ordinary firmness.

The question presented is:

Did the Ninth Circuit undermine free speech

protections when it found that a retaliatory action is

independent from an action that could chill a person

of ordinary firmness from engaging in protected

speech?

ii

PARTIES TO THE PROCEEDING

Petitioner, who was Plaintiff-Appellant below, is

Judicial Watch, Inc.

Respondent, who was Defendant-Appellee

below, is Dr. Shirley Weber, in her capacity as the

Secretary of State of the State of California.

iii

STATEMENT OF RELATED PROCEEDINGS

This case is directly related to the following

proceedings:

Judicial Watch, Inc. v. Weber, 2023 U.S. Dist.

LEXIS 91214, No. 2:22-cv-06894 (C.D. Cal. May 22,

2023)

Judicial Watch, Inc. v. Weber, 2024 U.S. App.

LEXIS 26918, No. 23-3546 (9th Cir. Oct. 24, 2024)

iv

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ...... iii

TABLE OF CONTENTS ........................................... iv

TABLE OF AUTHORITIES ..................................... vi

PETITION FOR WRIT OF CERTIORARI .................1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED .................1

INTRODUCTION .......................................................3

STATEMENT OF THE CASE ....................................4

A.

Statutory Background ...............................4

B.

Factual Background. ..................................5

C.

1.

Judicial Watch’s Protected

Speech ................................................5

2.

The Secretary’s Course of

Action .................................................7

Proceedings Below .....................................8

REASONS FOR GRANTING THE PETITION .......10

I.

The Court Should Grant Review

To Resolve The Consequential Circuit

Split Caused By The Ninth Circuit’s

Decision...................................................10

v

A. The Ninth Circuit’s “Adverse

Action” Standard Conflicts With

The Standard Followed By Every

Regional Circuit ................................... 10

B. The Ninth Circuit’s

Undefined Standard Undermines

The First Amendment, Raising

An Issue of Exceptional

Importance. ........................................... 13

II.

This Case Presents an Ideal

Vehicle To Address The Question

Presented ..................................................17

CONCLUSION ..........................................................18

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ...............................................17

Bart v. Telford,

677 F.2d 622 (7th Cir. 1982) ..................... 11, 12, 13

Barton v. Clancy,

632 F.3d 9 (1st Cir. 2011) ...............................10, 14

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005) ................. 11, 12, 13

Connelly v. Cnty. of Rockland,

61 F.4th 322 (2d Cir. 2023) ....................... 10, 12, 14

Connick v. Myers,

461 U. S. 138 (1983) ..............................................17

Constantine v. Rectors & Visitors of

George Mason Univ.,

411 F.3d 474 (4th Cir. 2005) .................................10

Coszalter v. City of Salem,

320 F.3d 968 (9th Cir. 2003) .................................13

Cox v. Warwick Valley Cent. Sch. Dist.,

654 F.3d 267 (2d Cir. 2011) ..................................12

Crawford-El v. Britton,

93 F.3d 813 (D.C. Cir. 1996) .................................11

Crawford-El v. Britton,

523 U.S. 574 (1998) ...............................................11

Eaton v. Meneley,

379 F.3d 949 (10th Cir. 2004) ...............................11

Garcia v. City of Trenton,

348 F.3d 726 (8th Cir. 2003) ..................... 11, 14, 16

vii

Garrison v. La.,

379 U.S. 64 (1964) .................................................17

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) .................................................3

Keenan v. Tejeda,

290 F.3d 252 (5th Cir. 2002) .................................10

Mirabella v. Villard,

853 F.3d 641 (3rd Cir. 2007).................................10

Nat’l Rifle Assoc. v. Vullo,

144 S. Ct. 1316 (2024) ...........................................16

O’Handley v. Weber,

62 F.4th 1145 (9th Cir. 2023) ...............................16

O’Handley v. Weber,

141 S. Ct. 2715 (2024) ...........................................16

Reguli v. Russ,

109 F.4th 874 (6th Cir. 2024) ...............................11

Thaddeus-X v. Blatter,

175 F.3d 378 (6th Cir. 1999) .................................12

Williams v. Mitchell,

122 F.4th 85 (4th Cir. 2024) .................................12

Zelnik v. Fashion Inst. of Tech.,

464 F.3d 217 (2d Cir. 2006) ..................................14

Federal Statutory Provisions

28 U.S.C. § 1254 ..........................................................1

State Statutory Provisions

Cal. Elec. Code § 10 .....................................................4

Cal. Elec. Code § 10.5 .............................. 1, 2, 4, 5, 7, 8

1

PETITION FOR WRIT OF CERTIORARI

Judicial Watch, Inc., through counsel,

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. 5a−9a)

is not reported but is available at 2024 U.S. App.

LEXIS 26918, No. 23-3546 (9th Cir. Oct. 24, 2024).

The order denying Petitioner’s petition for panel

rehearing and petition for rehearing en banc was

issued on December 5, 2024. App. 3a−4a. The opinion

and order of the district court (App. 10a−36a) is not

reported but is available at 2023 U.S. Dist. LEXIS

91214, No. 2:22-cv-06894 (C.D. Cal. May 22, 2023).

JURISDICTION

The judgment of the court of appeals was

entered on October 24, 2024. App. 1a−2a, 5a−9a. The

order denying Petitioner’s petition for panel

rehearing and petition for rehearing en banc was

issued on December 5, 2024. App. 3a−4a. The

jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioner’s claims involve the First and

Fourteenth Amendments of the U.S. Constitution,

which are reproduced at App. 37a−38a.

Section 10.5 of the California Election Code

states, in relevant part:

2

(a) There is established within the

Secretary of State the Office of Elections

Cybersecurity.

(b) The primary missions of the Office of

Elections Cybersecurity are both of the

following:

*

*

*

(2) To monitor and counteract false or

misleading information regarding the

electoral process that is published

online or on other platforms and that

may suppress voter participation or

cause confusion and disruption of the

orderly and secure administration of

elections.

*

*

*

(c) The

Office

Cybersecurity shall

following:

of

do

*

*

all

Elections

of the

*

(8) Assess the false or misleading

information regarding the electoral

process described in paragraph (2) of

subdivision (b), mitigate the false or

misleading information, and educate

voters,

especially

new

and

unregistered voters, with valid

information from elections officials

such as a county election official or the

Secretary of State.

3

INTRODUCTION

The First Amendment prohibits a government

official from retaliating against a private individual

for engaging in protected speech. Houston Cmty. Coll.

Sys. v. Wilson, 595 U.S. 468, 474 (2022). Every

regional circuit has honored this principle,

recognizing that a retaliatory action is one that would

chill a person of ordinary firmness from continuing to

engage in protected speech. 1 That is, until this case.

The California Secretary of State, the chief

elections officer for the largest state in the country,

purportedly acting under a statutory mandate, took

an extensive course of action against Judicial Watch

for its protected speech on the electoral process.

These actions included monitoring Judicial Watch’s

speech for months leading up to the 2020 Election,

falsely assessing Judicial Watch’s September 22, 2020

YouTube video on election integrity as “misleading,”

using a dedicated pathway that she established with

YouTube to have the video removed, and recording

details about her actions against the video in the

Office’s “Misinformation Tracking Sheet.” That video

was removed within 24 hours, as the Secretary

intended. The Secretary specifically targeted a

section of the video discussing Judicial Watch’s

lawsuits against the Secretary for her noncompliance

with election law, lawsuits that resulted in favorable

outcomes for Judicial Watch.

Flying in the face of precedent in all 11 regional

circuits, the Ninth Circuit embraced the novel

proposition that “[a]ny potential chilling effect” is

1

The Federal Circuit has not addressed this issue.

4

“irrelevant” in deciding whether a challenged

government action is adverse. App. 7a−8a. Instead,

it adopted a new rule out of whole cloth: a court must

first decide whether a plaintiff has alleged an adverse

action—a term it did not define—before it decides

whether that action would chill a person of ordinary

firmness. Only if both conditions are met, the Ninth

Circuit held, does a retaliatory action exist. Applying

this new standard to this case, the Ninth Circuit

found that Judicial Watch had failed to plead an

adverse action without ever analyzing whether the

Secretary’s entire conduct would chill a person of

ordinary firmness from continuing to engage in

protected speech.

The Court should grant review to repair the

consequential circuit fracture created by the Ninth

Circuit’s extraction of the “chilling effect” inquiry

from the “adverse action” standard. The “chilling

effect” is not, as the Ninth Circuit puts it, “irrelevant.”

It is fundamental, serving to protect those of ordinary

firmness from retaliatory government action.

STATEMENT OF THE CASE

A.

Statutory Background.

California Secretary of State Dr. Shirley Weber

is California’s chief elections officer and is responsible

for administering provisions of the Election Code.

Cal. Elec. Code § 10; App. 41a, ¶ 4. In this capacity,

the Secretary oversees the Office of Elections

Cybersecurity (“OEC”), which was created by section

10.5 of the California Elections Code. Id.; Cal. Elec.

Code § 10.5. Section 10.5 requires the Secretary,

acting through OEC, to “assess” “false or misleading”

information published online that “may suppress

5

voter participation or cause confusion and disruption

of the electoral process”; to “mitigate” such

information; and to “educate voters” with “valid

information from elections officials.” Cal. Elec. Code

§§ 10.5(b)(2), (c)(8).

To satisfy these statutory

obligations, the Secretary “work[s] closely and

proactively with social media companies to keep

misinformation from spreading, take[s] down sources

of misinformation as needed, and promote[s] [the

Secretary’s] accurate, official election information at

every opportunity.” App. 47a−48a, ¶ 27. In addition

to

OEC

staff,

the

Secretary

relied

on

SKDKnickerbocker LLC—a partisan public affairs

and consulting firm that specialized in working with

Democratic Party politicians and, in September 2020,

was advising the Biden campaign—to monitor social

media activity of private citizens. App. 48a, ¶ 29.

SKDK also regularly sent “Misinformation Daily

Briefings” to the Secretary. Id. The Secretary in turn

maintained a “Misinformation Tracking Sheet” to

track speech for removal, as well as outcomes. App.

43a−45a, ¶¶ 13−18.

B.

Factual Background.

1.

Judicial Watch’s Protected Speech.

Judicial Watch is an educational nonprofit that

seeks to promote integrity, transparency, and

accountability in government and fidelity to the rule

of law. App. 40a, ¶ 3. As an integral part of its

mission, Judicial Watch monitors developments in

election law and brings lawsuits to promote election

integrity and protect voter rights. Id. For example,

in 2017, Judicial Watch sued the Secretary and Los

Angeles County to compel the State and the county to

6

comply with their voter list maintenance obligations

under National Voter Registration Act.

App.

42a−43a, ¶ 9. The lawsuit resulted in a Consent

Decree that compelled the Secretary and Los Angeles

County to implement several new practices and

procedures to clean up state and county voter

registration rolls. Id. In 2020, Judicial Watch sued

the Secretary and Governor Gavin Newsom to

challenge the Governor’s attempt to change the

State’s 2020 election procedures by executive order

instead of going through the Legislature. Id. The

Legislature subsequently adopted the changes. Id.

The social media giant YouTube plays a vital

role in how Judicial Watch communicates with its

followers and educates the public about election

integrity and other issues. App. 40a−41a, ¶¶ 3, 6.

Judicial Watch has made use of its YouTube channel

since May 2006. App. 41a, ¶ 6. As of September 23,

2022, Judicial Watch had posted over 4,200 videos on

its YouTube channel and garnered nearly 94 million

views. App. 41a−42a, ¶ 7. Over 502,000 YouTube

users subscribe to Judicial Watch’s YouTube channel.

Id.

Just weeks before the 2020 General Election, on

September 22, 2020, Judicial Watch posted on its

YouTube channel a 26-minute video entitled

“**ELECTION INTEGRITY CRISIS** Dirty Voter

Rolls, Ballot Harvesting & Mail-in-Voting Risks!”

App. 42a, ¶ 8. In the video, Judicial Watch President

Tom Fitton discussed a multitude of controversial

changes to states’ election procedures, including

changes to vote-by-mail and ballot collection

processes and states’ failures to clean up their voter

rolls. App. 42a−43a, ¶ 9. Fitton also highlighted and

7

relied upon Judicial Watch’s successful lawsuits

against the Secretary and other California officials.

Id.

Fitton’s comments were neither false nor

misleading. App. 43a, ¶ 10. Nor could any of Fitton’s

comments be considered capable of “suppress[ing]

voter participation or caus[ing] confusion or

disruption of the orderly and secure administration of

elections.” Id.

2.

The Secretary’s Course of Action.

Since at least August 31, 2020, the Secretary has

monitored Judicial Watch’s social media activity,

including its YouTube channel, in part through

SKDK. App. 48a, ¶ 29. On September 22, 2020, the

same day Judicial Watch posted its video, the

Secretary placed the video on the “Misinformation

Tracking Sheet.” App. 42a−45a, ¶¶ 8, 13-19. She

included details such as that Judicial Watch is a

“conservative” organization and noted a section in the

video that referenced and relied upon successful

lawsuits brought by Judicial Watch against the

Secretary for her noncompliance with election law.

App. 14a, 42a−44a, ¶¶ 9-14.

Two days later, the Secretary reported Judicial

Watch’s video to YouTube through an email to several

YouTube representatives. App. 45a, ¶¶ 19-20. No

introduction between the representatives and the

Secretary was necessary, as the Secretary had

developed a “dedicated pathway” with YouTube to

perform her interpreted statutory duties under

Section 10.5. Id. Within 24 hours, a YouTube

representative responded and informed the Secretary

that YouTube would “look into this and get back to

you as soon as we can.” App. 46a, ¶ 21. Later that

8

same day and within 24 hours of the Secretary’s email

to YouTube, Judicial Watch’s video had been

removed.

Id., ¶ 22.

Afterwards, a YouTube

representative emailed the Secretary, thanked her

“for raising this content to our attention,” and

informed the Secretary that the video had been

removed. Id., ¶ 23.

Notably, the September 24, 2020 video is a

portion of a longer video also posted by Judicial Watch

on its YouTube channel that addresses issues beyond

election integrity. App. 47a, ¶ 25. The longer video,

which the Secretary did not report to YouTube,

remains available on YouTube. Id.

The Secretary made no evidence-based finding

that the video removed from YouTube was “false or

misleading” or “may suppress voter participation or

cause confusion and disruption,” nor would any such

findings have been warranted or supported by

evidence. App. 46a, ¶ 24; Cal. Elec. Code §10.5(c)(8)

(citing Cal. Elec. Code §10.5(b)(2)).

C.

Proceedings Below.

On September 23, 2022, Judicial Watch sued the

Secretary, in her official capacity, for violating its

First Amendment free speech rights. App. 39a−52a.

Judicial Watch’s lawsuit asserts two separate claims:

a retaliation claim (Count I) and a claim challenging

the Secretary’s policy for enforcing Section 10.5

(Count II).

App. 49a−51a.

The Secretary

subsequently moved to dismiss both claims for lack of

standing and for failure to state a claim. See App.

14a. After briefing and a hearing on the motion, the

district court found that although Judicial Watch had

established standing, the complaint failed to state a

9

cause of action under the First Amendment. App.

20a, 26a−31a.

The district court granted the

Secretary’s motion to dismiss both claims under Fed.

R. Civ. P. 12(b)(6) without leave to amend. App. 33a.

Judicial Watch appealed, challenging the

district court’s failure to analyze the second element,

i.e. whether the Secretary’s actions would chill a

person of ordinary firmness from continuing to

engage in protected speech, and the district court’s

finding that the Secretary’s entire course of conduct

constituted permissible government speech that could

not form the basis of either of Judicial Watch’s claims.

After briefing, the Ninth Circuit affirmed the

district court’s dismissal of both claims. In a cursory

opinion lacking sufficient analysis, the Ninth Circuit

held that the district court did not err in failing to

analyze whether the Secretary’s course of conduct

would chill a person of ordinary firmness and that the

Secretary’s conduct amounted to permissible

government speech. App. 6a−8a. Relatedly, because

it determined that the Secretary’s course of conduct

constituted permissible government speech, Judicial

Watch’s unconstitutional regulation of speech claim

failed as well. App. 8a−9a.

Judicial Watch’s petition for panel rehearing

and rehearing en banc pursuant to Rules 35 and 40 of

the Federal Rules of Appellate Procedure was denied

on December 5, 2024. App. 3a−4a.

10

REASONS FOR GRANTING THE PETITION

I.

The Court Should Grant Review To

Resolve The Consequential Circuit Split

Caused By The Ninth Circuit’s Decision.

A.

The Ninth Circuit’s “Adverse Action”

Standard Conflicts With The Standard

Followed By Every Regional Circuit.

Until this case, there was uniformity among all

the regional circuits in addressing the second element

of a First Amendment retaliation claim, whether the

plaintiff had pled a retaliatory government action, or

what is commonly referred to as an “adverse action.”

The Ninth Circuit’s sister circuits recognize that an

adverse action is an action that would have a chilling

effect on a person of ordinary firmness from

continuing to engage in protected speech. See Barton

v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011) (“a plaintiff

need not suffer an ‘adverse employment action’ as

that term ordinarily is used in the employment

discrimination context”; instead, the action must be

one that “would have a chilling effect”); Connelly v.

Cnty. of Rockland, 61 F.4th 322, 325 (2d Cir. 2023) (an

action is adverse “if it ‘would deter a similarly

situated individual of ordinary firmness from

exercising his or her constitutional rights.’”) (citations

omitted); Mirabella v. Villard, 853 F.3d 641, 650 (3rd

Cir. 2007) (a retaliatory action is an act that would

“deter a person of ordinary firmness”); Constantine v.

Rectors & Visitors of George Mason Univ., 411 F.3d

474, 500 (4th Cir. 2005) (“a plaintiff suffers adverse

action if the defendant's allegedly retaliatory conduct

would likely deter ‘a person of ordinary firmness’”);

Keenan v. Tejeda, 290 F.3d 252, 261 (5th Cir. 2002)

11

(an adverse action is one that caused the plaintiff to

“suffer an injury that would chill a person of ordinary

firmness”); Reguli v. Russ, 109 F.4th 874, 881 (6th

Cir. 2024) (an adverse action is one that would deter

an “ordinary citizen” from engaging in protected

expression); Bart v. Telford, 677 F.2d 622, 624−25

(7th Cir. 1982) (an actionable retaliation claim must

be based on an action that would deter a person of

ordinary firmness); Garcia v. City of Trenton, 348

F.3d 726 (8th Cir. 2003) (same); Eaton v. Meneley, 379

F.3d 949, 954 (10th Cir. 2004) (“For there to have been

a violation of First Amendment rights, the

defendant’s action must have had a deterrent, or

‘chilling’ effect”); Bennett v. Hendrix, 423 F.3d 1247,

1254 (11th Cir. 2005) (“A plaintiff suffers adverse

action if the defendant’s allegedly retaliatory conduct

would likely deter a person of ordinary firmness from

the exercise of First Amendment rights.”); CrawfordEl v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996),

vacated on other grounds, 523 U.S. 574 (1998) (the

inquiry is whether an “official’s acts ‘would chill or

silence a ‘person of ordinary firmness’ from future

First Amendment activities.’”).

Departing from the universally accepted test,

the Ninth Circuit adopted a restrictive, novel

standard, describing the “chilling effect” as entirely

“irrelevant” to deciding whether a plaintiff has pled

an adverse action. App. 7a−8a. The Ninth Circuit

held that a court must first determine whether the

plaintiff has pled an adverse action—without defining

the term—before it decides whether the action would

have a chilling effect. Id. For good reason, none of

the circuits splice the retaliatory action component of

a First Amendment retaliation claim into two parts.

12

Because there is no exhaustive list of adverse actions,

the “chilling effect” inquiry is the heart of the second

element of a retaliation claim.

It is not an

afterthought. The Ninth Circuit’s decision guts the

heart out of the element, leaving simply an undefined

label of “adverse action.”

Under the Ninth Circuit’s standard, because the

chilling effect is “irrelevant,” there is no consideration

of the factual context in determining whether an

action is adverse. This is clearly at odds with the

position embraced by the other circuits. For instance,

the Fourth Circuit has explained that whether an

action is adverse requires a “fact intensive inquiry”

where “[c]ontext matters” precisely because “the

significance of any given act of retaliation will often

depend upon the particular circumstances.” Williams

v. Mitchell, 122 F.4th 85, 89−90 (4th Cir. 2024).

Similarly, the Second Circuit has recognized that the

“test is highly context-specific” and the factual

circumstances specific to a claim “are likely to be

relevant to this assessment.” Cox v. Warwick Valley

Cent. Sch. Dist., 654 F.3d 267, 273 (2d Cir. 2011);

Connelly, 61 F.4th at 325. The Eleventh Circuit has

noted that there are different interests at stake in a

case brought by a private citizen versus a case

brought by a public employee, pointing to the Sixth

Circuit’s explanation in Thaddeus-X v. Blatter, 175

F.3d 378, 398 (6th Cir. 1999), that “[p]ublic employees

. . . may be required to tolerate more than average

citizens, before an action taken against them is

considered adverse.” Bennett, 423 F.3d at 1252.

“[T]he definition of adverse action is not static across

contexts.” Thaddeus-X, 175 F.3d at 398. Turning to

the Seventh Circuit, Judge Posner declared in Bart v.

13

Telford, 677 F.2d 622 (7th Cir. 1982) that “[t]he effect

on freedom of speech may be small, but since there is

no justification for harassing people for exercising

their constitutional rights it need not be great in order

to be actionable.” 677 F.2d at 625. Applying this

principle to the facts, the Seventh Circuit held that

petty harassments such as an employer ridiculing an

employee for bringing a birthday cake to the office and

groundless reprimands could form the basis of

actionable First Amendment retaliation claim. Id.

Yet, under the Ninth Circuit’s rule, any factual

context is “irrelevant.”

For this reason alone, the Court should grant

review.

B.

The

Ninth

Circuit’s

Undefined

Standard Undermines The First

Amendment, Raising An Issue of

Exceptional Importance.

The “chilling effect” inquiry serves a protective

function, guarding the free speech rights of the

“ordinary” private citizen. See Bennett, 423 F.3d at

1252. The “chilling effect” inquiry is fundamental to

deciding whether an action is adverse because “[t]he

goal is to prevent, or redress, actions by a

government employer that ‘chill the exercise of

protected’ First Amendment rights.” Coszalter v. City

of Salem, 320 F.3d 968, 974−75 (9th Cir. 2003). The

Ninth Circuit’s extraction of the “chilling effect”

inquiry from the “adverse action” standard is highly

consequential.

The U.S. Constitution is obviously national in

scope and therefore it should not matter if a plaintiff

brings a claim in the Ninth Circuit or, say, the

14

Eleventh Circuit. But now, because of the Ninth

Circuit’s decision, it does. Again, the “chilling effect”

inquiry in other regional circuits requires a fact-based

analysis that is integral in establishing an adverse

action. Plaintiffs in the Ninth Circuit are deprived of

this fact-based inquiry if they cannot clear the Ninth

Circuit’s undefined first hurdle, whether the action is

“adverse.” Many actions that have been found

“adverse” due to the specific facts in a case in other

regional circuits would likely not be actionable in the

Ninth Circuit because there would be no factual

analysis. For example, the Second Circuit has

recognized that “lesser actions” like a “reprimand,”

“negative

evaluation

letters,”

and

“express

accusations of lying” can be adverse under certain

circumstances. Connelly, 61 F.4th at 325; Zelnik v.

Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir.

2006). These actions, depending on the context, could

chill a person of ordinary firmness. Id. The First

Circuit also has observed that “relatively minor

events” like “verbal harassment and humiliation” can

be actionable depending on the facts of the case.

Barton, 632 F.3d at 29−30. These actions could have

an objectively chilling effect. Id. To focus its “adverse

action” analysis, the Eighth Circuit asks questions

such as “What would a person of ‘ordinary firmness’

have done in reaction to the [government action]?

Would he or she have simply ignored them, or would

he or she have been slowed down, at least to some

degree?” Garcia, 348 F.3d at 729. The Ninth’s Circuit

standard

does

not

permit

these

factual

considerations.

Again, the “chilling effect” inquiry is necessary

to determine whether a government action is adverse

15

because there is no exhaustive list of “adverse

actions.” Without the “chilling effect” as the focus, the

standard for evaluating a retaliatory action turns into

one akin to the “clearly established” standard in

qualified immunity cases. The Ninth Circuit now

only considers those actions that have previously been

considered by the courts to be “adverse” as

actionable. 2 This, in turn, incentives governments to

create nuanced ways to retaliate against its citizens.

Inevitably, this will prevent plaintiffs from having

their day in court if they allege a government action

that is objectively chilling but that is atypical or

involves a course of conduct that must be viewed in

its entirety, as Judicial Watch has alleged here.

The Ninth Circuit’s novel “adverse action”

standard is also unworkable. Without defining what

exactly is “adverse,” the Ninth Circuit stated that a

court must first determine whether a government

action is “adverse in the first place.” App. 7a−8a. The

answer to this circular question, in the Ninth Circuit’s

view, is not affected by whether the action is

objectively chilling. Consequently, this means that if

the court determines under some undefined standard

that the government action is not “adverse,” then it

does not matter whether that same action would chill

a person of ordinary firmness. But how does a court

determine if a government action is adverse if the

“chilling effect” inquiry is, as the Ninth Circuit put it,

Some adverse actions, like those cited by the district court,

are easily recognizable: discipline, suspension, or dismissal from

government employment, revocation of a license, or an arrest.

App. 29a.

2

16

“irrelevant”? The Ninth Circuit’s decision provides no

answer.

This case exemplifies the First Amendment

problems with the Ninth Circuit’s standard. As

Judicial Watch pled, the Secretary, purportedly

acting under Section 10.5, pursued an extensive,

multi-part course of action against Judicial Watch

that would chill a person of ordinary firmness from

continuing to engage in protected speech. The Ninth

Circuit mischaracterized this course of action as

simple “flagging” of a post that potentially violated

YouTube’s policies, which is fundamentally at odds

with what Judicial Watch pled in its complaint. App.

7a−8a. 3 Because the Ninth Circuit determined that

“flagging” is not an adverse action, it did not inquire

into the chilling effect of the Secretary’s course of

action, ignoring critical facts in Judicial Watch’s

complaint that add necessary context to the

Secretary’s course of conduct. See Nat’l Rifle Assoc. v.

Vullo, 144 S. Ct. 1316, 1330 (2024) (explaining that

the Second Circuit was obligated to draw all

reasonable inferences in the plaintiff’s favor and

consider the allegations as a whole). Further, the

First Amendment’s protection of the right to free

speech against retaliatory government action is at its

apex when it concerns speech on public issues.

The Ninth Circuit’s “government speech” finding was

based entirely on its erroneous conclusion that the facts in this

case are analogous to those presented in O’Handley v. Weber, 62

F.4th 1145 (9th Cir. 2023). App. 6a−9a. Recently, the Court

denied review of the Ninth Circuit’s opinion in O’Handley.

O’Handley v. Weber, 141 S. Ct. 2715 (2024). Notably, the

questions presented in that case are starkly different from the

question presented here. Neither question even references the

“adverse action” standard.

3

17

Connick v. Myers, 461 U. S. 138, 145 (1983). Here,

that speech is about the electoral process, the “essence

of self-government.” Garrison v. La., 379 U.S. 64,

74−75 (1964) (“[S]peech concerning public affairs is

more than self-expression; it is the essence of selfgovernment.”). This sort of speech is deserving of the

most protection against retaliation, not subject to an

undefined standard like the one imposed by the Ninth

Circuit.

The Court should correct the Ninth Circuit’s

decision to prevent entrenchment and further

proliferation of this consequential circuit split.

II.

This Case Presents an Ideal Vehicle For

Addressing The Question Presented.

This case presents an ideal vehicle to review the

question presented for several reasons.

First, because this case arises out of a motion to

dismiss, it is limited to the four corners of the

complaint, and the truthfulness of the complaint’s

factual allegations is assumed. Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009).

Second, with respect to Judicial Watch’s

retaliation claim, only the retaliatory component of

Judicial Watch’s retaliation claim is at issue. To this

day, the Secretary has never disputed that Judicial

Watch’s speech was protected by the First

Amendment, that its speech was a substantial or

motivating factor in her actions, or that she intended

the outcome she effected.

Finally, this is not a coercion case. The coercion

line of cases does not apply to either of Judicial

Watch’s claims. Therefore, the retaliation claim does

18

not depend on the actions or motivations of a third

party. This is a case squarely between the Secretary

and Judicial Watch.

For these reasons, the case is an excellent

vehicle for addressing the question presented.

CONCLUSION

The petition for writ of certiorari should be

granted.

.

Respectfully submitted,

MICHAEL BEKESHA

Counsel of Record

KATHRYN BLANKENBERG

JUDICIAL WATCH, INC.

425 Third St., S.W., Ste 800

Washington, D.C. 20024

(202) 646-5172

mbekesha@judicialwatch.org

Counsel for Petitioner

March 5, 2025