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Ninth Circuit reinstates retaliation lawsuit by Oregon Senator Boquist

The state senator had balked at plans to arrest him for walking out of a legislative session and busting the quorum.

(CN) – Oregon state Senator Brian Boquist can proceed with his retaliation lawsuit against the state Senate's Democratic leadership over a requirement he provide 12-hour advance notice before showing up at the Oregon Capitol.

A Ninth Circuit panel on Thursday overturned the dismissal of Boquist's lawsuit by a lower court judge two years ago. The appellate court rejected the argument that statements Boquist made after he and other senators were threatened with arrest for walking out of the Senate were "fighting words" not protected by the First Amendment.

"Even a statement that appears to threaten violence may not be a true threat if the context indicates that it only expressed political opposition or was emotionally charged rhetoric," U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, wrote in the unanimous decision.

Boquist, a former Republican who last year joined the Independent Party of Oregon, was among a number of minority senators who walked out of a 2019 legislative session, thereby preventing the state Senate from passing legislation because there was no quorum. In response, the Senate president and other Democratic senators stated that the walkouts could be fined, arrested and imprisoned.

This prompted Boquist to assert during a June 2019 speech on the Senate floor that, if the Senate leader is going to send the police for him, "Hell’s coming to visit you personally.” In a media interview the same day, Boquist added that "this is what I told the [state police] superintendent: Send bachelors and come heavily armed. I’m not going to be a political prisoner in the state of Oregon. It’s just that simple.”

Although Boquist immediately apologized to the Senate president for his comments during his speech, he was told that he would have to provide 12-hour advance notice in writing to the Senate secretary when he planned to come to the capitol building so that state police could beef up their presence.

Boquist, representing himself, sued the Senate leadership for retaliating against his exercise of his free speech rights. He only seeks a declaration that his constitutional rights were violated and no damages.

The appellate panel stressed that the situation of an elected official who faces retaliation is very different from that of a government employee who faces adverse consequences for exercising their free speech rights. The government can restrict an employee's or contractor's free speech if there's a conflict with the government's needs to perform public services, according the panel.

"The rationale for allowing the government to restrict the speech of government employees and contractors is not applicable to elected officials," Ikuta wrote. "An elected official’s speech does not interfere with his performance of duties; to the contrary, the speech is a vital component of his duties."

Representatives of the Oregon attorney general, who is defending the lawsuit, and Boquist didn't immediately respond to emails seeking comment on the ruling.

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