Respondents Brief — Judicial Watch, Inc., Petitioner v. Shirley Weber, California Secretary of State

No. 24-965

In the Supreme Court of the United States

JUDICIAL WATCH, INC.,

Petitioner,

v.

SHIRLEY WEBER, CALIFORNIA SECRETARY OF STATE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

DIANA L. KIM*

Deputy Solicitor General

ANNA FERRARI

PAUL STEIN

Supervising Deputy

Attorneys General

June 13, 2025

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

455 Golden Gate Avenue

San Francisco, CA 94102-7004

(415) 510-4400

Diana.Kim@doj.ca.gov

*Counsel of Record

i

QUESTION PRESENTED

Whether the facts alleged in petitioner’s complaint

state a plausible claim that respondent unlawfully retaliated against petitioner for engaging in protected

speech.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

Argument ..................................................................... 5

Conclusion.................................................................. 16

iii

TABLE OF AUTHORITIES

Page

CASES

Balt. Sun v. Elrich

437 F.3d 410 (4th Cir. 2006) .................................. 9

Bantam Books v. Sullivan

372 U.S. 58 (1963) .................................................. 8

Bart v. Telford

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

Barton v. Clancy

632 F.3d 9 (1st Cir. 2011) .................................... 13

Bennett v. Hendrix

423 F.3d 1247 (11th Cir. 2005) .................. 5, 12, 13

Bhattacharya v. Murray

93 F.4th 675 (4th Cir. 2024) ................................ 14

Blankenship v. Manchin

471 F.3d 523 (4th Cir. 2006) .................................. 6

Bloch v. Ribar

156 F.3d 673 (6th Cir. 1998) .................................. 6

Connelly v. Cnty. of Rockland

61 F.4th 322 (2d Cir. 2023) .................................. 13

Constantine v. Rectors & Visitors of

George Mason Univ.

411 F.3d 474 (4th Cir. 2005) ................................ 13

iv

TABLE OF AUTHORITIES

(continued)

Page

Cox v. Warwick Valley Ctr. Sch. Dist.

654 F.3d 267 (2d Cir. 2011).................................. 13

Crawford-El v. Britton

93 F.3d 813 (D.C. Cir. 1996) ................................ 13

Eaton v. Menely

379 F.3d 949 (10th Cir. 2004) .............................. 13

Garcia v. City of Trenton

348 F.3d 726 (8th Cir. 2003) .......................... 10, 12

Goldstein v. Galvin

719 F.3d 16 (1st Cir. 2013) .................................... 6

Hammerhead Enter. v. Brezenoff

707 F.2d 33 (2d Cir. 1983)...................................... 8

Houston Cmty. Coll. Sys. v. Wilson

595 U.S. 468 (2022) ...................................... 6, 9, 10

Hutchins v. Clarke

661 F.3d 947 (7th Cir. 2011) .................................. 6

Keenan v. Tejeda

290 F.3d 252 (5th Cir. 2002) ................................ 12

Mendocino Env’t Ctr. v. Mendocino

Cnty.

192 F.3d 1283 (9th Cir. 1999) ................................ 5

Mirabella v. Villard

853 F.3d 641 (3d Cir. 2007).................................. 14

v

TABLE OF AUTHORITIES

(continued)

Page

Mulligan v. Nichols

835 F.3d 983 (9th Cir. 2016) ................................ 12

Murthy v. Missouri

603 U.S. 43 (2024) ............................................ 9, 15

Nat’l Rifle Ass’n v. Vullo

602 U.S. 175 (2024) ................................................ 8

Novoselsky v. Brown

822 F.3d 342 (7th Cir. 2016) ................................ 15

O’Handley v. Weber

62 F.4th 1145 (9th Cir. 2023) .... 2, 3, 5, 7, 8, 10, 11

O’Handley v. Weber

144 S. Ct. 2715 (2024) (No. 22-1199) ................. 4, 5

Plains Com. Bank v. Long Family Land

& Cattle

554 U.S. 316 (2008) .............................................. 15

Pleasant Grove City v. Summum

555 U.S. 460 (2009) ................................................ 6

Reguli v. Russ

109 F.4th 874 (6th Cir. 2024) .............................. 13

Savage v. Segura

2025 WL 900433 (9th Cir. Mar. 25,

2025) ..................................................................... 12

vi

TABLE OF AUTHORITIES

(continued)

Page

Shutt v. Miller

724 F. App’x 112 (3d Cir. 2018) ............................. 7

Suarez Corp. Indus. v. McGraw

202 F.3d 676 (4th Cir. 2000) ........................ 6, 7, 15

Thaddeus-X v. Blatter

175 F.3d 378 (6th Cir. 1999) ............................ 6, 13

VDARE Found. v. City of Colorado

Springs

11 F.4th 1151 (10th Cir. 2021) .................. 7, 14, 15

Williams v. Mitchell

122 F.4th 85 (4th Cir. 2024) ................................ 13

X-Men Sec. v. Pataki

196 F.3d 56 (2d Cir. 1999)............................ 6, 7, 15

STATUTES

Cal. Elec. Code

§ 10 .......................................................................... 1

§ 10.5 ....................................................................... 2

§ 10.5(a) .................................................................. 1

§ 10.5(b)(1) .............................................................. 1

§ 10.5(b)(2) .............................................................. 1

§ 10.5(c)(8) .............................................................. 2

1

STATEMENT

1. YouTube is a company that enables users to

post videos online. See Pet. App. 41a. It maintains its

own set of policies governing what users may post on

its platform. See id. at 46a. Petitioner Judicial Watch

has posted over 4,200 videos on YouTube. Id. at 41a.

On September 22, 2020, petitioner posted a video

titled “**ELECTION INTEGRITY CRISIS** Dirty

Voter Rolls, Ballot Harvesting & Mail-In Voting

Risks!” Pet. App. 42a. The video featured petitioner’s

president, Tom Fitton, who stated that mail-in voting

“almost guarantees voter fraud and ballot and voter

intimidation.” C.A. S.E.R. 8. He claimed that States

were “mailing ballots to lists that you know are dirty,”

and that “[t]hey don’t have security measures in place

to make sure that people who are voting by mail are

actually . . . eligible to vote.” Id. at 6, 9; see id. at 8

(naming California). He suggested that mail-in voting

could be used to “steal elections” by having “political

operatives gin up 2,000 ballots” because “there’s really

no effective way to challenge those ballots.” Id. at 7.

Fitton anticipated that the video might be taken down

by YouTube for its content and told viewers to go to

petitioner’s website to find petitioner’s content if

YouTube removed it. Id. at 9, 11.

Respondent Shirley Weber is California’s Secretary of State. She is responsible for administering free

and fair elections. Cal. Elec. Code § 10. The Office of

Elections Cybersecurity (OEC) reports to Secretary

Weber. Id. § 10.5(a). The state Elections Code

charges OEC with several responsibilities, including

coordinating with local officials “to reduce the likelihood and severity of cyber incidents,” id. § 10.5(b)(1);

“monitor[ing] and counteract[ing] false or misleading

information regarding the electoral process,” id.

2

§ 10.5(b)(2); and educating voters with valid information about the electoral process, id. § 10.5(c)(8).

The Election Code does not vest OEC with any regulatory or enforcement authority. See id. § 10.5.

On September 24, 2020, an OEC employee emailed

YouTube about the video that petitioner had posted on

September 22. Pet. App. 45a. The message stated:

Hi YouTube Reporting Team,

I am reporting the following video because it misleads community members

about elections or other civic processes

and misrepresents the safety and security of mail-in ballots. Thank you for

your time and attention to this matter.

Id. YouTube responded that it would review the

video. Id. at 46a. On September 27, it followed up to

explain that the video “has been removed from the

platform for violating our policies.” Id.

2. Petitioner filed this lawsuit against the Secretary in September 2022. Pet. App. 39a-52a. Petitioner advanced a First Amendment claim alleging

that the Secretary had unlawfully retaliated against

it by “monitoring” the video, “erroneous[ly]” assessing

it to be misleading, and “reporting” it to YouTube. Id.

at 49a-50a. The complaint sought declaratory relief

and an injunction barring the Secretary “from violating Plaintiff ’s constitutional rights.” Id. at 51a. 1

a. The district court dismissed petitioner’s complaint with prejudice. Pet. App. 35a. It concluded that

this case was controlled by a recent appellate decision,

O’Handley v. Weber, 62 F.4th 1145 (9th Cir. 2023),

1 Petitioner’s other claims were dismissed by the district court

and are not at issue here. See Pet. App. 50a-51a; Pet. i.

3

which had affirmed the dismissal of a “nearly identical” First Amendment retaliation claim against the

Secretary for monitoring and reporting misleading

election-related content to Twitter, Pet. App. 31a; see

id. at 28a-32a.

In O’Handley, the court of appeals held that those

allegations failed to plead a First Amendment violation. 62 F.4th at 1163-1164. The court recognized

that the First Amendment prohibits the government

from coercing third parties to censor speech, but it

concluded that OEC’s email reporting the plaintiff’s

post to Twitter was permissible, non-coercive government speech. Id. at 1163. The message contained no

threat; it merely “flagged” the tweet and, “at most, requested that Twitter remove the post.” Id. at 11571158. Twitter was “free to ignore” the request because

“OEC’s mandate gives it no enforcement power over

Twitter.” Id. at 1158, 1163. And Twitter made an “independent judgment” to restrict the tweet based on

“its own content-moderation policy.” Id. at 1158,

1163.

O’Handley next rejected the plaintiff ’s retaliation

claim. 62 F.4th at 1163-1164. The court of appeals

explained that retaliation requires an “adverse action

by the defendant that would chill a person of ordinary

firmness from continuing to engage in the protected

activity.” Id. at 1163. It held that the plaintiff failed

to meet this adverse action requirement. Id. The

court noted that the “most familiar” adverse actions

are typically “regulatory, proscriptive, or compulsory

in nature and have the effect of punishing someone for

his or her speech.” Id. It reasoned that OEC’s noncoercive message to Twitter did not rise to the level of

an adverse action. Id.

4

In this case, the district court considered the “sum

total” of the challenged actions and held that they

were “nearly identical” to those in O’Handley. Pet.

App. 30a-31a. As in O’Handley, OEC had communicated its opinion about petitioner’s video without

threats or coercion, leaving YouTube to decide what to

do. Id. at 25a, 27a. YouTube chose to remove the

video after concluding that it violated YouTube’s policies. Id. The court concluded that OEC’s actions were

permissible, non-coercive government speech, which

“d[id] not punish Judicial Watch for its speech” and

did not constitute an adverse action. Id. at 29a.

b. Petitioner appealed and, while that appeal was

pending, this Court denied the petition for a writ of

certiorari filed by the plaintiffs in O’Handley. 144 S.

Ct. 2715 (2024) (No. 22-1199).

The court of appeals then affirmed the dismissal of

petitioner’s complaint in this case in a memorandum

opinion. Pet. App. 5a-9a. The court recognized that a

plaintiff advancing a retaliation claim must plead that

it “was subjected to adverse action by the defendant

that would chill a person of ordinary firmness from

continuing to engage in the protected activity.” Id. at

7a. It held that petitioner failed to satisfy that requirement because the action alleged here was permissible, non-coercive government speech akin to the

action at issue in O’Handley. Id. at 7a-8a. The court

rejected petitioner’s attempt to distinguish the facts in

O’Handley. Id. at 8a. It also rejected petitioner’s argument that the district court below erred by not discussing the purported chilling effect. Id. at 7a-8a.

5

ARGUMENT

Petitioner acknowledges that there is “uniformity”

in published precedent from “all the regional circuits”

about how to assess whether a plaintiff has alleged an

adverse action for purposes of a First Amendment retaliation claim. Pet. 10. The unpublished decision below did not depart from that consensus: the court of

appeals applied the consensus approach to the facts of

this case and concluded that petitioner failed to state

a plausible First Amendment claim. That holding follows directly from O’Handley v. Weber, 62 F.4th 1145

(9th Cir. 2023), which this Court recently declined to

review, see 144 S. Ct. 2715 (2024) (No. 22-1199). And

it is correct: a message alerting YouTube to a video

that violates YouTube’s own policies—and leaving

YouTube to decide independently what action (if any)

to take—does not amount to retaliation in violation of

the First Amendment.

1. At bottom, petitioner disagrees with the court of

appeals’ application of a long-settled legal standard to

the particular facts of this case. But petitioner’s merits arguments are unpersuasive and do not provide

any basis for further review by this Court.

a. As petitioner recognizes, the circuits have “uniform[ly]” required plaintiffs advancing a First Amendment retaliation claim to plead an adverse action that

would “have a chilling effect on a person of ordinary

firmness from continuing to engage in protected

speech.” Pet. 10; see id. at 10-11 (collecting cases).

That includes the Ninth Circuit, which adopted the

same standard long ago. See, e.g., Mendocino Env’t

Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.

1999); see also Bennett v. Hendrix, 423 F.3d 1247, 1251

(11th Cir. 2005) (citing Mendocino and other circuit

decisions and observing that “every other Circuit has

6

adopted” the standard), abrogated on other grounds by

Pearson v. Callahan, 555 U.S. 223 (2009).

This consensus standard requires a “fact intensive”

and “context-specific” inquiry, Pet. 12, considering factors such as “the status of the speaker, the status of

the retaliator, the relationship between the speaker

and the retaliator, and the nature of the retaliatory

acts.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676,

686 (4th Cir. 2000); see also Thaddeus-X v. Blatter, 175

F.3d 378, 398 (6th Cir. 1999) (application of standard

“is not static across contexts”). When the alleged retaliatory act is a government communication, the inquiry “must account for” the fact that the challenged

act “is itself a form of speech.” Houston Cmty. Coll.

Sys. v. Wilson, 595 U.S. 468, 478 (2022). That counsels

in favor of a “cautious approach,” Goldstein v. Galvin,

719 F.3d 16, 30 (1st Cir. 2013), in part because “it is

not easy to imagine how government could function” if

it could not “speak for itself,” Pleasant Grove City v.

Summum, 555 U.S. 460, 467-468 (2009).

The main scenario in which courts have recognized

that government speech can constitute a materially

adverse action is where it amounts to “a threat, coercion, or intimidation intimating that punishment,

sanction, or adverse regulatory action will imminently

follow.” Suarez, 202 F.3d at 687; see, e.g., Blankenship

v. Manchin, 471 F.3d 523, 529-530 (4th Cir. 2006); XMen Sec. v. Pataki, 196 F.3d 56, 70-71 (2d Cir. 1999).

Courts sometimes also treat government speech as an

adverse action when it is harassing or otherwise “sufficiently embarrassing, humiliating, or emotionally

distressful,” such as when a government official discloses damaging personal information about the plaintiff. Suarez, 202 F.3d at 688; see, e.g., Hutchins v.

Clarke, 661 F.3d 947, 956-957 (7th Cir. 2011); Bloch v.

7

Ribar, 156 F.3d 673, 681 (6th Cir. 1998). But mere

criticism by a government official is not by itself an

adverse action, even where it “possibly influenced a

third party’s business decision.” VDARE Foundation

v. City of Colorado Springs, 11 F.4th 1151, 1174 (10th

Cir. 2021) (emphasis omitted); see also X-Men, 196

F.3d at 70-71; Shutt v. Miller, 724 F. App’x 112, 114

(3d Cir. 2018).

b. The decision below accords with this consensus

approach to analyzing First Amendment retaliation

claims. The court of appeals recognized that, “[t]o

plead a First Amendment retaliation claim, a plaintiff

must establish that ‘he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the

protected activity[.]’” Pet. App. 7a (quoting O’Handley,

62 F.4th at 1163). And it properly concluded that the

allegations advanced here cannot satisfy that standard. See id. at 7a-8a.

Petitioner challenges respondent’s monitoring of

election-related misinformation and message to

YouTube about petitioner’s video. Pet. App. 49a-50a.2

But petitioner does not allege that the message was

harassing or that it disclosed “embarrassing, humiliating, or emotionally distressful” information. Suarez,

202 F.3d at 688. And petitioner concedes that the message was not coercive. Pet. 17 (“this is not a coercion

case”). The message merely informed YouTube of respondent’s view that the video “misleads community

members about elections or other civic processes and

2 Petitioner does not assert a retaliation claim based on the re-

moval of its video, and it does not allege that the Secretary coerced YouTube to remove the video. Pet. 17-18.

8

misrepresents the safety and security of mail-in ballots.” Pet. App. 45a. It contained no threat, see id.; it

did not ask YouTube to take any specific action, see id.;

YouTube was “free to ignore” the email, O’Handley, 62

F.4th at 1158; and OEC lacked any “enforcement

power” in the event that YouTube took no action, id.

at 1163; see also Pet. App. 46a (subsequent YouTube

message making clear that its decision to remove the

video was based on its own policies). 3

Respondent’s ability to communicate that kind of

message is important because a State “has a strong

interest in expressing its views on the integrity of its

electoral process.” O’Handley, 62 F.4th at 1164. Such

non-coercive government speech is permissible not

only when officials communicate publicly “through the

media,” but also when they express their views “directly” to a private party, as respondent did here. See,

e.g., Hammerhead Enter. v. Brezenoff, 707 F.2d 33, 39

(2d Cir. 1983) (official “wrote the department stores

directly” urging them not to distribute plaintiff ’s

game); O’Handley, 62 F.4th at 1163-1164 (respondent

messaged Twitter directly).

And it is not remotely plausible that conveying this

message to YouTube would chill a person of ordinary

3 The allegations here are thus a far cry from the kind of government threats this Court has held to be coercive. See, e.g., Nat’l

Rifle Ass’n v. Vullo, 602 U.S. 175, 192 (2024) (official with “direct

regulatory and enforcement authority” notified regulated entities

about potential violations and suggested those violations would

not be prosecuted if the entities disassociated from pro-gun

groups); Bantam Books v. Sullivan, 372 U.S. 58, 68 (1963)

(“thinly veiled threats to institute criminal proceedings,” which

were “phrased virtually as orders” and “invariably followed up by

police visitations”).

9

firmness from continuing to post videos on that platform. Users who post on online platforms agree to

abide by content-moderation policies and know that

platforms suppress content that violates those policies. See Murthy v. Missouri, 603 U.S. 43, 50 (2024).

“For years, the platforms have targeted speech they

judge to be false or misleading,” id.—including about

elections, id. at 51. The prospect that a user might be

held to policies that she already agreed to follow would

not chill an ordinary person from continuing to use a

platform. Indeed, that is exactly what any such person would expect.

Here, for example, Fitton stated in the video (before respondent’s message) that he anticipated the

video would be removed by YouTube. C.A. S.E.R. 9,

11. Petitioner later alleged it would continue to post

videos criticizing election procedures even after the

video’s removal. Pet. App. 49a. While courts “must

measure the adverse impact against an objectively

reasonable plaintiff[,] . . . ‘the plaintiff ’s actual response to the retaliatory conduct provides some evidence of the tendency of that conduct to chill First

Amendment activity.’ ” Balt. Sun v. Elrich, 437 F.3d

410, 419 (4th Cir. 2006); see Wilson, 595 U.S. at 479

(plaintiff’s “behavior and concessions seem telling”).

The challenged actions here would be inconsequential

to a person of ordinary firmness, as they apparently

were to Fitton and Judicial Watch.

c. Petitioner contends that the court of appeals

“[d]epart[ed] from the universally accepted test” and

adopted a “novel standard” under which consideration

of chilling effect is “irrelevant” to the adverse action

analysis. Pet. 11. It did no such thing. As discussed,

it expressly recognized that plaintiffs must establish

10

an adverse action “that would chill a person of ordinary firmness.” Pet. App. 7a. Petitioner’s contrary argument hinges on its misunderstanding of a single

sentence in the decision below, which responded to petitioner’s argument that the district court erred by

failing to examine the alleged chilling effect. The sentence observed that “[a]ny potential chilling effect is

relevant to whether an adverse action is ‘materially’

adverse, not whether the government action was adverse in the first place.” Id. at 7a-8a. That does not

mean that any potential chilling effect is “irrelevant.”

Contra Pet. 11. It instead clarifies that the proper role

of the chilling effect inquiry is “[t]o distinguish material from immaterial adverse actions.” Wilson, 595

U.S. at 477; see also Garcia v. City of Trenton, 348 F.3d

726, 728 (8th Cir. 2003) (“designed to weed out trivial

matters”).

Nor did the court of appeals establish an “exhaustive list” of adverse actions or adopt a new standard

“akin to the ‘clearly established’ standard in qualified

immunity cases.” Contra Pet. 15. Nothing in the decision below supports that reading.

And while

O’Handley referred to “familiar adverse actions” for

guidance, it never held or suggested that those examples were exhaustive. 62 F.4th at 1163; cf. Wilson, 595

U.S. at 477 (considering examples of adverse actions

including “an arrest, a prosecution, or a dismissal from

governmental employment” to guide the analysis).

Petitioner also asserts that, under the standard

purportedly applied below, “there is no consideration

of the factual context in determining whether an action is adverse.” Pet. 12. But the court of appeals expressly considered the facts alleged in the complaint—

including the full “course of action” taken by respondent—and held that the allegations failed to plead an

11

adverse action because they were materially indistinguishable from the facts alleged in O’Handley. Pet.

App. 8a. The O’Handley court likewise based its holding on the facts before it, including the “private company’s content moderation policy” and the State’s

“strong interest in expressing its views on the integrity of its electoral process.” 62 F.4th at 1163.

And petitioner’s contention that the lower courts

“ignor[ed] critical facts” (Pet. 16) cannot be squared

with what actually happened below. The district court

considered each of petitioner’s allegations about respondent purportedly “(1) monitoring Judicial

Watch’s speech; (2) making a ‘false assessment’ that

the September 22 video was misleading; (3) failing to

make a finding required by law; and (4) using a ‘close

working relationship’ and ‘dedicated pathways’ to

cause YouTube to remove the September 22 video.”

Pet. App. 28a-29a (citations omitted). For its part, the

court of appeals considered petitioner’s argument that

“the Secretary engaged in a broader ‘course of action’

that cannot be reduced to mere ‘government speech.’ ”

Id. at 8a. As both courts recognized, none of the ancillary actions alleged by petitioner provides a basis for

First Amendment liability. Id. at 8a, 29a-30a. They

merely facilitated respondent’s communication with

YouTube: the “sum total of the behavior” was to enable California to “form[ ] views and then express[ ]

those views in a permissible way.” Id. at 30a.

Finally, petitioner contends that the facts here are

not “analogous to those presented in O’Handley.” Pet.

16 n.3. Both courts correctly rejected that argument

because “O’Handley involved nearly identical allegations made in different words.” Pet. App. 31a; see id.

at 8a. As here, the plaintiff in O’Handley alleged that

OEC had (1) monitored election-related speech, C.A.

12

S.E.R. 26, 31; (2) wrongly deemed his post misleading,

id. at 30-31; (3) failed to meet statutory requirements,

id. at 24-26; and (4) used “dedicated reporting pathways” with platforms to flag misinformation, id. at 21.

2. This case does not implicate any genuine conflict of authority.

a. As discussed above, the Ninth Circuit and

“every other Circuit has adopted the ‘ordinary firmness’ test” for First Amendment retaliation claims.

Bennett, 423 F.3d at 1251 (collecting cases). Petitioner

argues that the unpublished disposition below creates

a conflict because it “[d]epart[s] from the universally

accepted test.” Pet. 11. That is incorrect, see supra pp.

9-11, but even assuming otherwise, it would not provide a persuasive reason for further review. The published precedent of the Ninth Circuit tracks the

consensus approach and will control the analysis “if a

plaintiff brings a claim in the Ninth Circuit.” Pet. 13;

see, e.g., Mulligan v. Nichols, 835 F.3d 983, 990 (9th

Cir. 2016) (Ninth Circuit’s approach is “consistent

with the views of other circuits”); Savage v. Segura,

2025 WL 900433, at *2 (9th Cir. Mar. 25, 2025) (recent

decision applying precedent requiring “adverse action

by the defendant that would chill a person of ordinary

firmness”).

Nor does the analysis in the cases petitioner cites

(Pet. 10-13) conflict with the decision below. Most of

those cases are inapposite because they addressed

conduct of a different nature from the government

speech at issue here. For example, many involved

searches, seizures, or other law enforcement actions

that “engaged the punitive machinery of government

in order to punish.” Garcia, 348 F.3d at 729 (repeated

parking tickets); see Keenan v. Tejeda, 290 F.3d 252,

13

259 (5th Cir. 2002) (detention at gunpoint). 4 Other

cases are similarly far afield. 5 Still others held that

the conduct at issue did not amount to an adverse action. 6

In the few cited cases where government speech

was held to be an actionable adverse action, the speech

was part of a course of harassment. See generally supra pp. 6-7. In Bart v. Telford, for example, the mayor

retaliated against a city employee by orchestrating a

“campaign of harassment,” including “baseless reprimands,” “ridicule,” and “selective enforcement of work

rules.” 677 F.2d 622, 624-625 (7th Cir. 1982); see also

Bennett, 423 F.3d at 1254-1255 (police mailed “flyers

depicting the plaintiffs as criminals” as part of a “prolonged and organized campaign of harassment” that

4 See, e.g., Reguli v. Russ, 109 F.4th 874, 876 (6th Cir. 2024)

(search of Facebook records); Bennett, 423 F.3d at 1249, 12541255 (surveillance, traffic citations, and unjustified warrants);

Williams v. Mitchell, 122 F.4th 85, 88 (4th Cir. 2024) (falsified

information in accident report).

5 See,

e.g., Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 500-501 (4th Cir. 2005) (university gave student three days’ notice for exam, predetermined to fail her, and

denied hearing to challenge grade); Thaddeus-X, 175 F.3d at 398399 (correctional officers transferred prisoner to ward for mentally disturbed inmates); Crawford-El v. Britton, 93 F.3d 813,

825-826 (D.C. Cir. 1996) (correctional officer misdelivered prisoner’s belongings), vacated on other grounds, 523 U.S. 574 (1998).

6 See, e.g., Cox v. Warwick Valley Ctr. Sch. Dist., 654 F.3d 267,

274-275 (2d Cir. 2011) (school placed student in suspension room

and reported parents for neglect); Eaton v. Menely, 379 F.3d 949,

956 (10th Cir. 2004) (sheriff used police computer to run unauthorized background check); Connelly v. Cnty. of Rockland, 61

F.4th 322, 326-327 (2d Cir. 2023) (employer reprimanded employees); cf. Barton v. Clancy, 632 F.3d 9, 30 (1st Cir. 2011) (official

who harassed plaintiff by criticizing decision to hire him and investigating his taxes was entitled to qualified immunity).

14

also included baseless stops and searches). Petitioner

does not present any allegations of harassment here.

And the lone case cited by petitioner involving noncoercive, non-harassing government speech held that

the speech alone did not amount to an adverse action.

See Mirabella v. Villard, 853 F.3d 641, 651 (3d Cir.

2007) (where town told plaintiffs it would seek sanctions for frivolous litigation if they sued, “quantum of

governmental authority brought to bear” was too

“minimal” to establish First Amendment liability).

b. When other courts have considered circumstances analogous to those here, they have held that

the First Amendment is not violated when officials

criticized the plaintiffs’ speech and urged—but did not

coerce—third parties to take independent action

against the speaker.

For example, the Fourth Circuit held that a plaintiff failed to plead a retaliation claim where a public

university dean submitted a “Concern Card” notifying

the university’s academic standards committee of the

plaintiff ’s unprofessional conduct. Bhattacharya v.

Murray, 93 F.4th 675, 683, 689 (4th Cir. 2024). The

court explained that the card was merely “a referral

for another party to consider discipline” and had “no

punitive effect on its own, independent of the [committee’s] review.” Id. at 689. Similarly, the Eleventh Circuit held that a plaintiff failed to state a claim against

a city for denouncing the plaintiff ’s hate speech and

declining to support the plaintiff ’s upcoming event.

VDARE, 11 F.4th at 1157, 1172-1175. The venue for

that event later canceled its contract and refused to

host the event. Id. at 1174. But that fact did not

change the court’s conclusion because the venue was

not “compelled to do so at the City’s behest,” and a retaliation claim requires more than an allegation that

15

the city’s speech “possibly influenced a third party’s

business decision.” Id. Similar cases abound. 7

3. Finally, this case is hardly an “ideal vehicle.”

Contra Pet. 17.

Before this Court could reach the First Amendment question petitioner seeks to present, it would

have to resolve thorny questions of standing. Cf.

Murthy, 603 U.S. at 56. Although respondent recognized below that the lower courts were bound by prior

circuit precedent supporting petitioner’s theory of

standing, C.A. E.R. 14-16, this Court would have an

“independent obligation to assure [itself] that jurisdiction is proper,” Plains Com. Bank v. Long Family

Land & Cattle, 554 U.S. 316, 324 (2008). And petitioner’s standing theory rests on a “speculative chain

of possibilities.” Murthy, 603 U.S. at 70. Specifically,

petitioner claims it intends to continue posting videos

“criticiz[ing] election procedures,” Pet. App. 49a, but it

is speculative that (1) respondent will consider a future video misleading; (2) respondent will express that

view to YouTube; and (3) YouTube will remove the

video under its content-moderation policies. See

Murthy, 603 U.S. at 70. Even if YouTube were likely

to remove such a video, moreover, any injury to petitioner would “result[] from the independent action of

some third party not before the court.” Id. at 57.

7 See, e.g., Suarez, 202 F.3d at 690-691 (no retaliation where offi-

cials questioned Better Business Bureau’s integrity for granting

plaintiff membership and refused to help Bureau expand, leading

Bureau to expel plaintiff); X-Men, 196 F.3d at 68-72 (no retaliation where legislators asked agencies to terminate contracts with

plaintiffs); Novoselsky v. Brown, 822 F.3d 342, 347-348, 356-357

(7th Cir. 2016) (no retaliation where defendant filed complaint

with disciplinary committee and sent letters to private watchdog

group about plaintiff ’s meritless lawsuits).

16

Apart from Article III problems, there is a significant practical mismatch between the lawsuit petitioner filed and the relief petitioner appears to want.

The gravamen of petitioner’s complaint is that it suffered “harm to [its] ability to carry out its public education mission” because its video was censored by

YouTube. Pet. App. 50a. Petitioner apparently wants

to be exempt from YouTube’s content-moderation policies. But petitioner has not sued YouTube. Its lawsuit against respondent—even if successful—would

not make a real-world difference in its ability to post

its videos online. YouTube can continue to suppress

petitioner’s content if it violates YouTube’s policies—

with or without communications from respondent.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

DIANA L. KIM

Deputy Solicitor General

ANNA FERRARI

PAUL STEIN

Supervising Deputy

Attorneys General

June 13, 2025