Patterico's Pontifications


Ninth Circuit Issues Nadia Naffe Opinion

Filed under: General — Patterico @ 8:18 pm

The opinion is here. The outcome is precisely what I expected after watching the video of the oral argument. It’s a win on one issue, and (for now) a temporary setback on another.

Here are the two obscure issues the panel was considering.

First: did Naffe sufficiently allege that I acted under “color of law” claim under section 1983 by criticizing her as a private citizen on Twitter and my blog? Answer: no. Naffe loses on that issue.

Here is the key passage from the opinion. I am going to remove most of the citations for ease of reading:

Naffe’s § 1983 claim fails under this framework for several reasons. First, Naffe’s factual allegations do not give rise to the reasonable inference that Frey harmed Naffe while on duty or when “exercising his responsibilities pursuant to state law.” Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events. While county prosecutors are sometimes authorized to speak on behalf of their employers, Naffe pleads no facts to support her allegation that the County authorized or encouraged Frey’s
social and political commentary. Indeed, Frey discussed Naffe not on the Los Angeles County District Attorney’s verified Twitter page, but rather on his personal Twitter page and blog, which contain disclaimers that “[a]ll statements are made in [Frey’s] private capacity and not on behalf of [his] employer.” Finally, each Tweet or post cited by Naffe in her complaint is time-stamped very late at night or early in the morning, a fact which undermines her claim that Frey blogged and Tweeted during normal business hours using County resources. [I will also note that the timestamps were not on Pacific time, and therefore seemed later at night than they actually were. — Ed.]

Second, Frey’s comments about Naffe are not sufficiently related to his work as a county prosecutor to constitute state action. Naffe alleges Frey threatened to prosecute her as a way of coercing her to delete O’Keefe’s emails from her smart phone and remain quiet about O’Keefe’s plan to wiretap Representative Waters’s district office. But Naffe does not state any facts to support the allegation that Frey investigated her (or even could have investigated her). Iqbal, 556 U.S. at 678. She does not, for example, allege Frey used his authority to contact law enforcement, open an investigation file, or interview witnesses about Naffe’s involvement with O’Keefe. And a single Tweet in which Frey rhetorically asked “what criminal statutes, if any [Naffe] admitted violating,” does not create a nexus between Frey’s private harangues and his job.

Third, the facts Naffe pleads do not support her claim that Frey “purported or pretended to act under color of [state] law” when he blogged about her. To the contrary, Frey frequently reminded his readers and followers that, although he worked for Los Angeles County, he blogged and Tweeted only in his personal capacity. By contrast, in Anderson, where we found state action, defendant Warner specifically associated his actions with his law enforcement position, claiming to bystanders he was “a cop,” and the assault was “police business.” Here, unlike in Anderson, Frey did not claim to act in his official capacity. For this reason, Frey did not abuse the power given to him by the state to influence or harm Naffe.

And although Frey drew on his experiences as a Deputy District Attorney to inform his blog posts and Tweets, that alone does not transform his private speech into public action. Indeed, if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the “marketplace of ideas.” See City of San Diego, Cal. v. Roe, 543 U.S. 77, 82 (2004) (per curiam) (“[P]ublic employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues.”) . . . .

Emphasis is mine.

Second issue: did the District Court err by using a “preponderance of the evidence” standard to determine that she had not proved her damages were more than $75,000? Answer: yes. The correct standard, said the court, was whether the trial court could say to a “legal certainty” that her damages (again, taking her claims as true) could exceed $75,000. That standard makes it very easy for a plaintiff to allege damage, and the Ninth Circuit said she had sufficiently done so.

I have to keep repeating this: the factual allegations in the opinion are stated as if Naffe’s allegations are all true. The appellate court is required to do this. It doesn’t mean her allegations actually are all true. They aren’t.

Ken White has more at Popehat. The key point from the micro-perspective of the lawsuit is this: all the motions we had in play at the time, including an anti-SLAPP motion, are still in play.

But the larger issue is the precedent this decision creates, and one that I am proud to have had a role in. Namely, there is now a published precedent (albeit one that accepts false facts about me as being true) holding that public employees may give opinions about matters of public interest without being hit with a section 1983 lawsuit. (Well, we can always be hit with one, but it won’t go anywhere.)

Thanks very much to Ronald D. Coleman (from Likelihood of Confusion) and Kenneth P. White (from Popehat), who have both worked endless hours on this case. Thanks also to Eugene Volokh, who wrote an amicus brief supporting my position. I can’t find the words to properly thank these gentlemen for all their help on this case (and the one brought by Brett Kimberlin). I hope you will help spread the word about what great men they are, and what a great thing it is that they have done here.

Rachel Dolezal Resigns From NAACP

Filed under: General — Dana @ 5:08 pm

[guest post by Dana]

According to a letter posted by Rachel Dolezal on the NAACP Spokane Facebook page, she has resigned from her position as president of the Spokane chapter:

It is a true honor to serve in the racial and social justice movement here in Spokane and across the nation. Many issues face us now that drive at the theme of urgency. Police brutality, biased curriculum in schools, economic disenfranchisement, health inequities, and a lack of pro-justice political representation are among the concerns at the forefront of the current administration of the Spokane NAACP. And yet, the dialogue has unexpectedly shifted internationally to my personal identity in the context of defining race and ethnicity.

I have waited in deference while others expressed their feelings, beliefs, confusions and even conclusions – absent the full story.


I am consistently committed to empowering marginalized voices and believe that many individuals have been heard in the last hours and days that would not otherwise have had a platform to weigh in on this important discussion. Additionally, I have always deferred to the state and national NAACP leadership and offer my sincere gratitude for their unwavering support of my leadership through this unexpected firestorm.

While challenging the construct of race is at the core of evolving human consciousness, we can NOT afford to lose sight of the five Game Changers (Criminal Justice & Public Safety, Health & Healthcare, Education, Economic Sustainability, and Voting Rights & Political Representation) that affect millions, often with a life or death outcome.

And so forth…

This afternoon, Dolezal tweeted:

I am just like Rosa Parks. I will strive to become better than Rosa Parks. #TransracialLivesMatter

And ironically, it is being reported that while studying at Howard University, Dolezal once sued the college for discrimination:

Dolezal sued Howard University in 2002 for discriminating against her for being white. She claimed retaliation based on her race, gender, pregnancy and family responsibilities, saying she had been denied teaching positions and scholarship aid. She also complained that some of her artwork had been removed from an exhibition because black students were being favored. A judge, and subsequently an appeals court, found no basis for her claims.


Teacher: I Don’t Teach Shakespeare Because He Is White

Filed under: General — Patterico @ 7:43 am

Hooray for public education:

The Washington Post has published a guest article by a California teacher arguing that American high school students shouldn’t read Shakespeare because he’s a dead, white man.

Dana Dusbiber, who teaches English in Sacramento, says she avoids Hamlet and all the rest because her minority students shouldn’t be expected to study a “a long-dead, British guy” (Dusbiber herself is white). And while Shakespeare is widely regarded as the premier writer of the English language, able to timelessly portray themes central to the human experience, Dusbiber says he only is regarded that way because “some white people” ordained it and he can easily be replaced.

Lovely, eh?

On Water Rationing and Prices

Filed under: General — Patterico @ 7:41 am

The Washington Post describes water rationing coming to one California community, and the resentment that results:

Drought or no drought, Steve Yuhas resents the idea that it is somehow shameful to be a water hog. If you can pay for it, he argues, you should get your water.

People “should not be forced to live on property with brown lawns, golf on brown courses or apologize for wanting their gardens to be beautiful,” Yuhas fumed recently on social media. “We pay significant property taxes based on where we live,” he added in an interview. “And, no, we’re not all equal when it comes to water.”

. . . .

[A] moment of truth is at hand for Yuhas and his neighbors, and all of California will be watching: On July 1, for the first time in its 92-year history, Rancho Santa Fe will be subject to water rationing.

“It’s no longer a ‘You can only water on these days’ ” situation, said Jessica Parks, spokeswoman for the Santa Fe Irrigation District, which provides water service to Rancho Santa Fe and other parts of San Diego County. “It’s now more of a ‘This is the amount of water you get within this billing period. And if you go over that, there will be high penalties.’ ”

David Atkins at the Political Animal blog at the Washington Monthly summarizes his view:

Nothing better shows the infantility of the Republican mindset. These people believe that they’re all kings of their own little islands, that they have a right to use whatever they can get their hands on however they want. They have no concept of community or natural limits. For them, owning a Suburban is just as valid a choice as owning a Prius, climate change is a hoax that shouldn’t affect their choices, and anyone telling them they might have to cut back on something is a busybody interfering in their lives and waging a do-gooder war on their lifestyle. Their wealth doesn’t come at the expense of others because capitalism allows for endless growth and opportunity for those with enough gumption to pull themselves up by their bootstraps. And if they’re rich, the sense of the entitlement is exponentially greater.

That description, which is intended to be a withering denuncation of ridiculous views, largely describes my mindset, yes. Owning a Suburban is just as “valid” a choice as owning a Prius; would Atkins outlaw Suburbans? (I think he would.) People telling others they must cut back are busybodies interfering in our lives. Wealth does not come at the expense of others. Capitalism does indeed offer, if not “endless growth and opportunity,” then certainly enough, when the market is allowed to work.

I have this crazy idea: let the market set a price and let people pay that price. It might be a very high price, but the market should set it.

Here’s the weird part: inamongst all the comments at Washington Monthly that suggest that heavy water users should be killed (I’m not making that up; look at the comment thread yourself; where is that U.S. Attorney’s Office hassling when you need them?), there is one guy who labels himself a “progressive” and yet seems to understand something about economics:

As a progressive, I confess this is one of those times when I’m mystified by a claimed “progressive” position. I get that these people all have odious politics and are rich, so worthy of our hate, but why exactly shouldn’t water be priced for them like it is for everyone else, such that they buy what they can afford? That works for filet mignon, caviar, champagne, jet fuel, horses, butlers and pretty much everything else I can think of except air. (And it even works for air in a scuba tank.) You want to change to a political economy of “everyone gets exactly 1/n of the total amount of Y”, (perhaps allocated by ration card) where Y includes both “caviar” and “water”, fine, but at least lay those cards on the table and be explicit about what political economy you’re advocating for.

Right now water is *not* being priced and allocated by the market, and the biggest water hogs (as in the Palm Springs cite earlier) are *not* paying for what they’re using. The people quoted *want* to pay for it. Why do they have less right to buy water than some farmer in the central valley has to continue to pump unpriced groundwater at a tiny fraction of its value, with no state restriction? We’re a long long way away from a per capita survival allocation of water. We have a huge excess above that. But that water gets wasted because it’s *not* being priced. You seem to be arguing against a straightforward solution to that problem.

Almost enough to make you stand up and cheer, isn’t it? To those who argue that an actual market price would make water too expensive for the poor, the commenter says:

[D]o you really think that pricing water at a market clearing rate for the whole state would mean you couldn’t afford the liter or two you need to drink and the handful of gallons for your shower & toilet? It wouldn’t. But it would make the wasters in Rancho Santa Fe pay for their excess. I really don’t see what’s wrong with that. The whole point of the article is that attempting to solve the problem by moral suasion isn’t working.

The problem here is that this commenter uses terms like “market clearing rate” — which indicates some knowledge of actual economics, which means he is not going to be popular with his fellow progressives. Indeed, the more he learns about economics, the more he might come to realize how progressivism always defaults to these inefficient and oppressive centrally controlled mechanisms.

Sounds like he is getting there. Maybe there is hope?

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