Was D.C. Bar’s Liquor License Denied Partly Based on Owner’s Speech Criticizing Anti-Masking/Vax-Proof Requirement Speech?

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:

The Supreme Court has “rejected the view that conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Rumsfeld v. FAIR (2006). Instead, we must ask whether, in context, the conduct is “inherently expressive.” … [When] observers would have “no way of knowing” whether conduct is communicative without additional “explanatory speech,” that is strong evidence that the conduct is not “inherently expressive.”

FAIR is instructive. There, law schools denied military recruiters access to campuses in protest of the government’s “Don’t Ask, Don’t Tell” policy, forcing the recruiters to conduct interviews elsewhere. The law schools argued that their conduct was inherently expressive because they intended to convey opposition to the government’s policy. The Court disagreed. An observer who saw military recruiters interviewing away from a law school would have “no way of knowing whether the law school [was] expressing its disapproval of the military, all the law school’s interview rooms [were] full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.”  …

Here, … [t]he complaint’s allegations do not plausibly support that conclusion. The complaint alleges nothing about how The Big Board’s noncompliance would manifest itself to reasonable observers. It simply alleges that restaurants were required to enforce masking and check proof of vaccination, that The Big Board refused to do so, and that the District later suspended The Big Board’s licenses for violating the orders. Those allegations do not support an inference that reasonable observers would understand The Big Board’s conduct as communicative….

There are myriad non-expressive reasons an establishment might choose not to enforce a masking requirement, ranging from indifference and lax oversight to a reluctance to initiate confrontations with paying customers. The complaint alleges no facts suggesting that a reasonable observer would, notwithstanding these alternative explanations, understand The Big Board’s conduct to be “inherently expressive.”

The proof-of-vaccination requirement is even less suited to an expressive-conduct theory. The average observer could not know whether The Big Board checked vaccination cards merely by seeing patrons inside. And even if they could, that observation alone would not reveal that The Big Board was declining to check vaccination cards as a deliberate protest, rather than simply overlooking or inconsistently enforcing the requirement. Again, the complaint alleges no observable practice from which objectively reasonable viewers would understand that The Big Board was communicating opposition to the District’s policy or any other expressive message….

But the court held that the Complaint had sufficiently alleged that ANC 6C’s decision to file a “protest,” here meaning “a formal opposition … to the renewal” of an alcohol license (an opposition to which the Alcohol Board must give “great weight”), was based not just on the Big Board’s noncompliance with the requirements but also with “Flannery’s social media posts and press interviews criticizing the District’s policies—which everyone agrees are protected speech”:

The complaint’s strongest support for that inference is [ANC 6C Commissioner Mark] Eckenwiler’s public statement just days before the protest vote. The complaint alleges that when ANC 6C’s Alcoholic Beverage Licensing Committee considered The Big Board’s renewal application at its November 7, 2022, meeting, “Mr. Eckenwiler stated that The Big Board’s license should be revoked because, ‘I mean just some of the things he’s said publicly, we should go ahead and protest the license.'”  Per the complaint, no other committee member disagreed with or challenged Eckenwiler’s statement.  Two days later, the full ANC 6C voted to file the protest.

Those allegations, and reasonable inferences drawn from them, link the decision to file the protest to Flannery’s speech in emphatic fashion. In effect, the allegation is that the Commission member taking the lead on this issue said, at a public meeting, “We should file a protest because of Flannery’s protected speech,” and the Commission did so just two days later. A smoking gun is typically harder to find.

The complaint’s other allegations further support a reasonable inference that Flannery’s protected public criticism was a necessary cause of the protest. ANC 6C’s protest cited three grounds for protesting The Big Board’s license, but the Alcohol Board allegedly found no evidence substantiating any of those concerns, despite monitoring The Big Board on eight separate occasions.

Further, Eckenwiler’s alleged conduct during the settlement and mediation process, construed in the plaintiffs’ favor, reflected no genuine interest in pursuing the stated grounds for objecting to license renewal: He refused to engage meaningfully with Flannery or counsel, failed to provide evidence that supported the protest, and abruptly left a mandatory mediation session after speaking for less than forty-five seconds. Those allegations suggest that the protest’s stated grounds were pretextual—or, as the district court put it, “flimsy,” “unsupported,” and “quite troubling.” Combined with Eckenwiler’s public statement linking the protest to Flannery’s speech, those allegations support a reasonable inference that protected speech was a but-for cause of ANC 6C’s action….