Judicial Watch, Inc. v. Shirley Weber, California Secretary of State

California Elections Code Section 10.5 requires the California Secretary of State to mitigate “false or misleading” online statements regarding the electoral process. Under this mandate, the Secretary pursued an extensive course of action against Judicial Watch: (1) she monitored Judicial Watch’s online protected speech for months leading up to the 2020 election; (2) she falsely assessed as misleading Judicial Watch’s YouTube video discussing election integrity; (3) she used her close, proactive relationship and statecreated “dedicated pathway” with YouTube to have the video removed; and (4) she memorialized her actions in a “Misinformation Tracking Sheet.” Until this case, every regional circuit had held that an adverse action in the First Amendment retaliation context is one that would chill a person of ordinary firmness from continuing to engage in protected activity. The Ninth Circuit strayed from its sister circuits, excising the “chilling effect” inquiry from the universally accepted standard. It ruled that the Secretary’s course of action was not adverse, and therefore not actionable, without defining “adverse action” or analyzing whether her course of action would chill a person of ordinary firmness. The question presented is: Did the Ninth Circuit undermine free speech protections when it found that a retaliatory action is independent from an action that could chill a person of ordinary firmness from engaging in protected speech?