From Zhou v. Breed, decided Friday by the Ninth Circuit (Judges John Owens and Michelle Friedland, and visiting Sixth Circuit Judge Danny Boggs):
Appellants allege that both [S.F. Mayor London] Breed and Clear Channel violated their First Amendment right to free speech. To the extent that Appellants argue that Breed, or any public official, violated their First Amendment rights simply by speaking critically of a billboard or calling for its removal, that theory is squarely foreclosed by precedent.
We have previously joined a "host of other circuits" in holding that "public officials may criticize practices that they would have no constitutional ability to regulate, so long as there is no actual or threatened imposition of government power or sanction." Am. Fam. Ass'n, Inc. v. City & County of San Francisco (9th Cir. 2002); see also id. ("[L]etters which encouraged but did not threaten or intimidate landowner to terminate lease with billboard owner did not violate billboard owner's First Amendment rights." (citing R.C. Maxwell Co. v. Borough of New Hope (3d Cir. 1984))). Appellants have not alleged that, in criticizing one of Appellants' billboards, Breed or any public official made any threats of government sanction against Zhou, AAFPAC, Clear Channel, Outfront Media, Inc. …, or anyone.
Appellants' argument that their First Amendment rights were violated when Clear Channel, a private company, removed one of their billboards also fails. "A threshold requirement of any constitutional claim is the presence of state action." We "start with the presumption that private conduct does not constitute governmental action." Appellants do not allege any facts or put forward any plausible legal theory that would support treating Clear Channel as a state actor in this case.
The mere fact that Breed or other public officials criticized a billboard or called for its removal, without coercion or threat of government sanction, does not make that billboard's subsequent removal by a private party state action. See also Am. Mfrs. Mut. Ins. Co. v. Sullivan (1999) ("Action taken by private entities with the mere approval or acquiescence of the State is not state action."). Nor does the fact that companies that own billboards might be subject to some government regulations convert Clear Channel's decision to take down the billboard following public officials' criticism into state action. See Manhattan Cmty. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor."); Mathis v. Pac. Gas & Elec. Co. (9th Cir. 1989) ("[T]hat PG & E is a public utility subject to extensive state regulation … without more, is insufficient to infuse its conduct with state action."). Because Appellants have failed to allege state action, the district court properly dismissed their First Amendment claim.
