Background
Eric Flannery owns and operates The Big Board, a Washington, D.C. bar and restaurant. During the COVID-19 pandemic, Flannery publicly criticized the District’s masking and proof-of-vaccination requirements, and The Big Board refused to comply with them. The District temporarily suspended the restaurant’s operating and liquor licenses, but the restaurant reopened after the requirements were lifted and it paid a restoration fee.
Months later, Advisory Neighborhood Commission 6C opposed renewal of The Big Board’s liquor license. Commissioner Mark Eckenwiler had criticized Flannery and the restaurant online and, during a commission committee meeting, allegedly said that “some of the things” Flannery had said publicly warranted protesting the license. The commission filed a protest citing property values, peace and quiet, parking, and safety, but Alcohol Board investigators allegedly found no supporting problems. After mandatory mediation began, the commission withdrew the protest.
Flannery and The Big Board sued the commissioners in their personal capacities under 42 U.S.C. § 1983, alleging First Amendment retaliation. The district court dismissed the complaint, holding that the restaurant’s noncompliance was not protected expressive conduct and that the plaintiffs had not plausibly alleged that Flannery’s protected speech caused the protest.
The Court’s Holding
The D.C. Circuit agreed that The Big Board’s refusal to enforce the masking and vaccination requirements was not protected expressive conduct. The complaint did not allege observable practices from which a reasonable viewer would understand the restaurant’s noncompliance itself as communicating a message. Viewers could attribute unmasked patrons or failures to check vaccination status to numerous nonexpressive causes, and Eckenwiler’s awareness of Flannery’s accompanying statements did not make the conduct inherently expressive.
The court nevertheless held that the complaint plausibly alleged that Flannery’s concededly protected social-media posts and press interviews were a but-for cause of the commission’s protest. Eckenwiler’s alleged statement expressly linking the proposed protest to Flannery’s public remarks, followed two days later by the commission’s vote, strongly supported causation. The allegedly unsupported grounds for the protest and Eckenwiler’s conduct during settlement and mediation further supported an inference of pretext and retaliation.
The court rejected the argument that the complaint failed to connect Eckenwiler’s motive to the full commission. His leadership role, his statement at an official meeting, the absence of any challenge from other committee members, his role in the vote and protest, and the alleged weakness of the stated grounds permitted an inference that his retaliatory motive infected the commission’s action. The court reversed and remanded without deciding qualified immunity, which the district court had not addressed.
Key Takeaways
- Regulatory noncompliance is not protected expressive conduct merely because the actor intends it as a protest; reasonable observers must be able to understand the conduct itself, in context, as communicative.
- A government official’s statement directly linking adverse action to protected speech can plausibly establish but-for causation at the motion-to-dismiss stage, particularly when the stated grounds for the action appear unsupported.
- An additional lawful or nonretaliatory motive does not defeat a retaliation claim at the pleading stage if the allegations support an inference that the government would not have acted absent the protected speech.
Why It Matters
The decision distinguishes unprotected violations of generally applicable public-health rules from protected public criticism of those rules. Although The Big Board could not treat its refusal to comply as First Amendment expression, the government still could not retaliate against Flannery for his social-media posts and press statements.
The ruling also illustrates how direct statements by a government decisionmaker, combined with allegedly pretextual justifications, can sustain a First Amendment retaliation claim against a multi-member body at the pleading stage. The case returns to the district court for further proceedings, including consideration of qualified immunity.