United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR SUMMARY JUDGMENT
B. LEIGHTON UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants' Motion for
Summary Judgment [Dkt. #42]. Plaintiff Leonard Peltier claims
Defendants violated his first amendment rights when they
prematurely removed four of his paintings from a Department
of Labor and Industries exhibit promoting Native American
heritage month. [Dkt. #1].
Peltier is a Native American convicted of murdering two FBI
agents and is serving a life sentence. Peltier has become an
established painter during his more than 40 years in prison.
Leonard Peltier's son, Chauncey, manages an art gallery
featuring Leonard's paintings.
Timothy Church is the public affairs manager of the
Washington State Department of Labor and Industries.
Defendant Joel Sacks is the Director of L&I. Defendant
Jay Inslee is the Governor of Washington.
November 2015, L&I held a month-long Native American
heritage event at its Tumwater office. Chauncey Peltier
agreed to loan four of Leonard Peltier's paintings for
the event, and the paintings were exhibited in the L&I
after exhibiting Peltier's art, L&I received at least
three complaints from people upset that it was promoting an
artist who had been convicted of murdering two FBI agents.
Two of these complaints were from former FBI agents. L&I
removed Peltier's paintings two weeks before the exhibit
(and Chauncey) Peltier sued, claiming the removal violated
Leonard's federal and Washington State constitutional
rights. He also sued for intentional infliction of emotional
distress and negligence.
seek summary judgment on all claims. They argue that the
display was L&I's speech-not Peltier's-and the
first amendment does not apply to government speech. [Dkt. 53
at 2]. Defendants Sacks and Inslee argue that Peltier's
claims against them fail as a matter of law because they were
not personally involved in removing Peltier's paintings.
All Defendants argue that no reasonable jury would find that
removing the paintings was outrageous, and that they did not
intentionally inflict emotional distress on Peltier. They
argue that Peltier's negligence claim fails because there
is no tort duty sounding in negligence arising from the
constitution. Defendants also argue that there is no private
cause of action for violations of Washington's
argues that his paintings were his speech, not the
government's. He argues that Sacks and Church took
responsibility for removing the paintings, and that Inslee
must have participated in the decision to remove them because
he is the “highest decision-maker in the state.”
Peltier argues that Defendants acted with an “extreme
attitude” toward his first amendment rights, and with
“reckless disregard” for the emotional distress
that censoring his art would cause. He argues that Defendants
owed him a duty to not “trample on his first amendment
rights, ” which should give rise to a negligence claim.
Peltier concedes he has no private claim for money damages
under the Washington constitution; he now seeks a (mandatory)
injunction requiring L&I to display his paintings.
judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In determining whether an issue of fact
exists, the Court must view all evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-50 (1986) Bagdadi v.
Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine
issue of material fact exists where there is sufficient
evidence for a reasonable factfinder to find for the
nonmoving party. Anderson, 477 U.S. at 248. The
inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Id. at 251-52. The moving party bears
the initial burden of showing that there is no evidence which
supports an element essential to the nonmovant's claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once the movant has met this burden, the nonmoving party then
must show that there is a genuine issue for trial.
Anderson, 477 U.S. at 250. If the nonmoving party
fails to establish the existence of a genuine issue of
material fact, “the moving party is entitled to
judgment as a matter of law.” Celotex, 477
U.S. at 323-24.
is no requirement that the moving party negate elements of
the non-movant's case. Lujan v. National Wildlife
Federation, 497 U.S. 871 (1990). Once the moving party
has met its burden, the non-movant must then produce concrete
evidence, without merely relying on allegations in the
pleadings, that there remain genuine factual issues.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
First Amendment Claim
1983 affords plaintiffs a cause of action for constitutional
violations on the part of local government bodies and other
state officials. Sintra, Inc. v. City of Seattle,
131 Wash.2d 640, 652, 935 P.2d 555, 562 (1997).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege (1) the violation of the rights secured by the
Constitution and laws of the United States, and (2) the
deprivation was committed by a person acting under
color of state law. Parratt v. Taylor, 452
U.S. 527, 535, 101 S.Ct. 108 (1981) (emphasis added). To be
liable, the wrongdoer must personally cause the
violation. Leer v. Murphy, 844. F.2d 628, 633
(9th Cir. 1988). There is no respondeat superior
or vicarious liability. Polk County v. Dodson, 454
U.S. 312 (1981). A supervisor may be liable under § 1983
only if he “participated in or directed the violation,
or knew of the violation and failed to prevent it.
The Native American heritage month event was not
first argue that the art exhibit was L&I's-the
government'-speech, not Peltier's. They claim they
decided what forms of art and which art to use in the
display, not Peltier, and that his first amendment rights
were not impacted by their decision to remove his paintings
form their display. Peltier contends that the Native American
heritage month event was a public event intended to promote
the speech of Native American artists, and that Defendants
infringed on his first amendment rights when they effectively
censored his speech.
Free Speech Clause restricts government regulation of private
speech; it does not regulate government speech. Pleasant
Grove City v. Summum, 555 U.S. 460, 467 (2009). When the
government sets the overall message and approves every word
disseminated, it is not precluded from relying on the
government-speech doctrine merely because it solicits
assistance from nongovernmental sources in developing
specific messages. Johanns v. Livestock Mktg.
Ass'n, 544 U.S. 550, 553 (2005).
the government-speech doctrine is important-indeed,
essential-it is susceptible to dangerous misuse. Matal v.
Tam, 137 S.Ct. 1744, 1758 (2017). If private speech
could be passed off as government speech by simply affixing a
government seal of approval, government could silence or
muffle the expression of disfavored viewpoints. Id.
determining whether the government speech doctrine applies to
a given situation, the question is whether the government
acted to facilitate private speech, or to promote its own
message. Johanns, 544 U.S. at 553.
argument that Peltier's paintings were government speech
is based on Pleasant Grove. There, a City's
refusal to include a religious group's artwork in a city
monument did not violate the First Amendment because the
monument was government speech. See Pleasant Grove,
555 U.S. 460. The monument consisted of several different art
pieces relating to the history of the city, including some
pieces that were donated by private citizens. Because the
City set a clear “message” for the monument-the
City's history-and erected it permanently in a public
park, the monument was government speech. While government
approval was an important factor in determining whether the
government speech doctrine applied, it certainly was not the
only factor. The overall focus in Pleasant Grove was
on whether a reasonable observer would view the statement
made to be a statement by the government. See Eagle Point
Educ. Ass'n v. Jackson Cty. Sch. Dist. No. 9, 880
F.3d 1097, 1103 (9th Cir. 2018). In the context of
a permanent monument at a public park there was little chance
that observers would fail to appreciate the identity of the
speaker. Thus, the monument was government speech as a matter
of law. Pleasant Grove, 555 U.S. 460 at 471.
case, the identity of the speaker is not so clear.
Promotional materials for the heritage month event advertised
Peltier individually, encouraging onlookers to “come
see art by the renowned Native American artist Leonard
Peltier, ” and including a link to Peltier's
website. Other materials for the event advertised Native
American dance performances, story telling, movie screenings,
and discussions. A reasonable observer could have seen the
event poster and believed that the speakers were the Native
American artists that were listed and promoted individually.
Likewise, an observer who saw the poster promoting
Peltier's paintings certainly could have identified the
intended speaker as ...