No First Amendment Violation in Removal of Billboard After S.F. Mayor Had Criticized It

Starting at Zhou V. BreedThe Ninth Circuit’s Judges John Owens, Michelle Friedland and Danny Boggs, a Sixth Circuit Judge, ruled Friday that the matter was settled.

Both are claimed by the appellants [S.F. Mayor London]Clear Channel and Breed violated the First Amendment rights to freedom of speech. In the event that Appellants assert that Breed or any other public official violated their First Amendment right to free speech simply for criticizing a billboard and calling for its removal; that theory is clearly disproved by precedent.

We were previously part of an “host of other Circuits” that held that “public officials can criticize practices they are not constitutionally able to regulate, as long there isn’t any actual or threatened imposition or sanction by the government.” Am. Fam. Ass’n, Inc. v. City & County of San Francisco (9th Cir. 2002); Also see id. (“[L]”The First Amendment Rights of Billboard Owners were not violated byetters that encouraged and did not intimidate or threaten landowners in order to terminate their lease with the billboard owner.” (citing R.C. Maxwell Co. (3d Cir. 1984))). Appellants have not alleged that, in criticizing one of Appellants’ billboards, Breed or any public official made any threats of government sanction against Zhou, AAFPAC, Clear Channel, Outfront Media, Inc. …, or anyone.

Arguments of appellants claiming that their First Amendment rights were infringed because Clear Channel, an independent company, took down one of their billboards, also fail. The presence of government action is a prerequisite for any constitutional claim. The presumption is that private behavior does not amount to governmental action. Clear Channel has not been referred to as a “state actor” in the case by appellants.

Just because Breed, or any other public official, criticized a billboard, or asked for its removal without threat or coercion, doesn’t mean that the billboard will be removed by private state action. Also see Am. Mfrs. Mut. Ins. Co. v. Sullivan(1999). “Actions taken by private entities without the approval or consent of the State are not state actions .”). Clear Channel is not obliged to remove billboards from companies that are subject to regulations. This does not mean that Clear Channel will take action against the state if they have to. Check out Manhattan Cmty. Access Corp. v. Halleck2019″); Mathis v. Pac. Gas & Elec. Co. (9th Cir. 1989) (“[T]hat PG & E is a public utility subject to extensive state regulation … without more, is insufficient to infuse its conduct with state action.”). The District Court properly rejected the First Amendment claim by the appellants, as they have not alleged state action.

{The appellants claim that even though their claims do not support either a regulation or coercion theory state action, if they are examined together, then their allegations may support state action. That argument also fails.} …

The district court correctly struck, pursuant to California’s anti-SLAPP statute, Appellants’ claims against Breed for inducing breach of contract and intentional interference with a contractual relationship….

Breed is not able to prove that the Appellants have sufficient legal support for their tort claims. Appellants have to prove that a contract was in fact broken in order for them to succeed in their claim of inducing a violation of contract. Because … Appellants cannot show that Clear Channel breached its contract [given that the contract allowed Clear Channel to terminate it]Breed is not liable for inducing a violation of contract.

Appellants have to show Breed had knowledge of Appellants’ billsboard contracts. They also need to show Breed committed “intentional acts intended to cause a breach or disruption in the contractual relationship” in order for them as a party to their intentional interference claim. Appellants have not stated any specific elements to their cause of action. They do not claim Breed knew about Clear Channel and Outfront contracts, nor that Breed’s actions were designed to disturb Appellants’ contractual relationships. Appellants only claim Breed spoke negatively about one of the billboards in a television interview. This allegation does not indicate that Breed intended to disrupt any contractual relationship between Appellants. Therefore, the burden on Appellants to show a sufficient likelihood of success in their tort claims against Breed was not satisfied, and these claims were appropriately struck.

This post explains that the state action analysis follows circuit court precedents. It seems odd that interference with contract analysis is possible. Someone criticizing billboards must know that they were up for criticism under contract. At the very least, it appears plausible that criticizing billboards was intended to disrupt a contractual relationship by urging the billboard company not to take them down. The claim is unlikely to succeed for one other reason. In California, intentional interference in business relationships (short of intentionally inducement of an actual violation) can be brought under the law.

The factual background about the contents of these billboards is derived from the below decision, but the content itself may not be legally relevant.

October 2019, plaintiffs Ellen Lee Zhou and the Asian American Freedom Political Action Committee (“AAFPAC”) (collectively, “plaintiffs”) posted two billboard advertisements in support of Zhou’s campaign for mayor of the City and County of San Francisco….

AAFPAC billboards featured Breed driving a redbus with the text “Werewolves of London Tours” next to cars with cracked windows. The text continued with, “Vote Nov.5 for Ellen Lee Zhou Super Mayor!”

Clear Channel, OutFront and others posted the billboards October 2019. Breed joined her fellow activists to “conduct a concerted campaign” against Clear Channel, OutFront, to demand that the billboards be removed. Breed denounced them as racist, divisive and offensive. Breed attended the October 21 press conference at OutFront, but was not present. The billboard’s content was condemned by those present including David Chiu, State Assemblyman, and Board of Supervisors members. They were also called for its elimination. News media reported that several people criticized the content of the billboard, calling it racist, misogynistic and sexist and saying that San Francisco should ban them. Breed said in a media interview that “”[The billboard]It is disrespectful, hurtful and has no place [sic]” …