California Coastal Commission violates First Amendment in retaliating against Elon Musk

“The California government denied an Air Force request to allow Elon Musk’s SpaceX to increase its California rocket launches, citing Musk’s politics,” such as his posts on social media, reports The Independent. That retaliation against Musk violates the First Amendment, which makes it illegal for government regulators to punish a business for the speech of one of its owners. The Ninth Circuit Court of Appeals, which has jurisdiction over California, ruled that agencies can’t punish such speech, even if it isn’t at the core of the First Amendment, and isn’t on a matter of public concern — in its unanimous ruling in Carepartners LLC v. Lashway (2008).

The Independent notes that:

“The Department of Defense and a large bipartisan coalition of lawmakers endorsed the launch expansion, with some center-left housing activists attacking the vote as no different than the California Coastal Commission’s consistent denial of housing.

The Air Force and Space Force had requested that the California Coastal Commission allow SpaceX to increase its annual permitted launches from Vandenberg Air Force Base in Santa Barbara from 36 to 50.

“Elon Musk is hopping about the country, spewing and tweeting political falsehoods and attacking FEMA while claiming his desire to help the hurricane victims with free Starlink access to the internet,” said Commissioner Gretchen Newsom at the meeting.

“I really appreciate the work of the Space Force,” said Commission Chair Caryl Hart at the meeting. “But here we’re dealing with a company, the head of which has aggressively injected himself into the presidential race and he’s managed a company in a way that was just described by Commissioner Newsom that I find to be very disturbing.”

The bipartisan Congressional coalition signing a letter of support included a wide range of members of Congress, from leading Democrats Pete Aguilar, D-Redlands, and Ted Lieu, D-Torrance, to Republicans Michelle Steel, R-Fountain Valley, and Darrel Issa, R-San Diego….NASA currently does not have any of its own active vehicles for transporting goods or humans to space, and must rely either on Russia, or on American commercial partners such as SpaceX, Boeing, Northrop Grumman, and United Launch Alliance, a joint venture of Boeing and Lockheed Martin….

First Amendment advocates wondered how it was legal to consider Musk’s legally protected political speech in its regulatory actions. “While the commission can consider the nature of SpaceX’s activities and their environmental impact, the First Amendment forbids government agencies from leveraging regulatory power to stifle protected speech,” said the Foundation for Individual Rights and Expression, a pro-First Amendment legal nonprofit, in a statement. “That was true when Florida’s government punished Disney for opposing Gov. Ron DeSantis’s education policies, it was true when a New York agency leaned on insurance companies to cut ties with the NRA because of its political advocacy, and it’s true here.”

If the Commission is sued for violating the First Amendment, it may argue that Elon Musk’s tweets contain misinformation, and thus are not protected by the First Amendment. Progressives have argued that Musk promotes disinformation.

But government agencies don’t have the ability to punish most misinformation even when it is committed by their own employees, much less the general public or entities they regulate, who are subject to less bureaucratic control than employees are. In Johnson v. Multnomah County (1995), the Ninth Circuit Court of Appeals, which has jurisdiction over the Commission, ruled that even recklessly false speech by public employees about their co-workers could be protected by the First Amendment.

In its later ruling in Carepartners LLC v. Lashway (2008), the Ninth Circuit ruled that regulated companies have even broader First Amendment protections than public employees, and don’t have to show things public employees do to win a First Amendment lawsuit, such as that their speech is on a matter of public concern.

In dealing with the public, as opposed to their own employees, government agencies don’t get to punish speech because they think it is false.

For example, the Washington State Supreme Court struck down a misinformation law that provided, “It is a violation of this chapter for a person to sponsor with actual malice … political advertising that contains a false statement of material fact.” In State v. 119 Vote No! Committee (1998), it noted that it was unacceptably dangerous to allow government agencies to ban such “false speech,” because the “‘very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind…. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.’”

Federal appeals courts have struck down other laws against political disinformation, in cases such as 281 Care Committee v. Arnesen (2014).

The U.S. Supreme Court has also made clear that false speech that does not amount to libel or slander is usually protected by the First Amendment despite its falsity. For example, it so ruled in United States v. Alvarez (2012), which stuck down the Stolen Valor Act banning lies about military awards and decorations.

The Department of Defense and a large bipartisan coalition of lawmakers endorsed the launch expansion, with some center-left housing activists attacking the vote as no different than the California Coastal Commission’s consistent denial of housing.

The Air Force and Space Force had requested that the California Coastal Commission allow SpaceX to increase its annual permitted launches from Vandenberg Air Force Base in Santa Barbara from 36 to 50.

“Elon Musk is hopping about the country, spewing and tweeting political falsehoods and attacking FEMA while claiming his desire to help the hurricane victims with free Starlink access to the internet,” said Commissioner Gretchen Newsom at the meeting.

“I really appreciate the work of the Space Force,” said Commission Chair Caryl Hart at the meeting. “But here we’re dealing with a company, the head of which has aggressively injected himself into the presidential race and he’s managed a company in a way that was just described by Commissioner Newsom that I find to be very disturbing.”

The bipartisan Congressional coalition signing a letter of support included a wide range of members of Congress, from leading Democrats Pete Aguilar, D-Redlands, and Ted Lieu, D-Torrance, to Republicans Michelle Steel, R-Fountain Valley, and Darrel Issa, R-San Diego….NASA currently does not have any of its own active vehicles for transporting goods or humans to space, and must rely either on Russia, or on American commercial partners such as SpaceX, Boeing, Northrop Grumman, and United Launch Alliance, a joint venture of Boeing and Lockheed Martin….

First Amendment advocates wondered how it was legal to consider Musk’s legally protected political speech in its regulatory actions. “While the commission can consider the nature of SpaceX’s activities and their environmental impact, the First Amendment forbids government agencies from leveraging regulatory power to stifle protected speech,” said the Foundation for Individual Rights and Expression, a pro-First Amendment legal nonprofit, in a statement. “That was true when Florida’s government punished Disney for opposing Gov. Ron DeSantis’s education policies, it was true when a New York agency leaned on insurance companies to cut ties with the NRA because of its political advocacy, and it’s true here.”

If the Commission is sued for violating the First Amendment, it may argue that Elon Musk’s tweets contain misinformation, and thus are not protected by the First Amendment. Progressives have argued that Musk promotes disinformation.

But government agencies don’t have the ability to punish most misinformation even when it is committed by their own employees, much less the general public or entities they regulate, who are subject to less bureaucratic control than employees are. In Johnson v. Multnomah County (1995), the Ninth Circuit Court of Appeals, which has jurisdiction over the Commission, ruled that even recklessly false speech by public employees about their co-workers could be protected by the First Amendment.

In its later ruling in Carepartners LLC v. Lashway (2008), the Ninth Circuit ruled that regulated companies have even broader First Amendment protections than public employees, and don’t have to show things public employees do to win a First Amendment lawsuit, such as that their speech is on a matter of public concern.

In dealing with the public, as opposed to their own employees, government agencies don’t get to punish speech because they think it is false.

For example, the Washington State Supreme Court struck down a misinformation law that provided, “It is a violation of this chapter for a person to sponsor with actual malice … political advertising that contains a false statement of material fact.” In State v. 119 Vote No! Committee (1998), it noted that it was unacceptably dangerous to allow government agencies to ban such “false speech,” because the “‘very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind…. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.’”

Federal appeals courts have struck down other laws against political disinformation, in cases such as 281 Care Committee v. Arnesen (2014).

The U.S. Supreme Court has also made clear that false speech that does not amount to libel or slander is usually protected by the First Amendment despite its falsity. For example, it so ruled in United States v. Alvarez (2012), which stuck down the Stolen Valor Act banning lies about military awards and decorations.

All over the world, government officials have used laws against disinformation to punish truthful and accurate speech, such as targeting a doctor for warning that a dangerous new virus, the coronavirus, was rapidly spreading and could threaten public health.

It is dangerous to allow bans on disinformation, because government officials and their proxies sometimes define true information as “disinformation.” The government-funded Global Disinformation Index labeled two blog posts as “disinformation” because they discussed how the crime rate differs for different racial groups, urging advertisers to demonetize the blog they appeared on, to avoid having “branded ads appearing next to them.” But the claim made by the blog posts was true, as the federal government’s own Bureau of Justice Statistics had noted — the crime rate does differ by race. The two blog posts were titled “Jailing Criminal Violent Criminals Is Appropriate” and “Criminal Justice Reforms Myths About Racism and Sexism.” They cited crime data from the federal Bureau of Justice Statistics. Rates of committing homicide “for blacks were more than 7 times higher than the rates for whites” between 1976 and 2005, according to the Bureau of Justice Statistics in its publication, Homicide Trends in the United States. As the BJS noted in a later version of that same publication, Homicide Trends in the United States, “Blacks are disproportionately represented as both homicide victims and offenders….The offending rate for blacks (34.4 per 100,000) was almost 8 times higher than the rate for whites (4.5 per 100,000).

If Musk sues over this First Amendment violation by the California Coastal Commission, it will doubtless claim there are non-speech-related justifications for its decision. But it is clear that his speech was a but-for cause of its decision, and this impermissible motive is even more clearly present than an impermissible motive was in a case where the Supreme Court found a First Amendment violation by a commission based on statements made by a single member of that commission, Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).