From Friday's decision in Flannery v. Eckenwiler by D.C. Circuit Judge Bradley Garcia, joined by Judges Cornelia Pillard and Michelle Childs; as usual, note that in these cases dealing with motions to dismiss, the court focuses on the facts as plausibly alleged by the plaintiff—there has been no factfinding on what the facts actually are:
Eric Flannery owns and operates The Big Board, a Washington, D.C. bar and restaurant. When the District imposed masking and proof-of-vaccination requirements due to the COVID-19 pandemic, Flannery publicly criticized those policies and The Big Board refused to comply with them. Months after the District lifted the requirements, Advisory Neighborhood Commission 6C (ANC 6C) formally opposed renewal of The Big Board's liquor license. Flannery and The Big Board sued, alleging that the members of the Commission violated the First Amendment by opposing the renewal in retaliation for Flannery's public criticism and his restaurant's noncompliance with the District's policies.
The court concluded that "The Big Board's refusal to comply with the orders was not expressive conduct protected by the First Amendment," so not renewing his license based solely on such refusal would have been constitutional:
