Dennis Linthicum v. ROB WAGNER, Oregon Senate President, individually

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS LINTHICUM; BRIAN J.
BOQUIST;
Plaintiffs - Appellants,
REJEANA JACKSON; KLAMATH
COUNTY REPUBLICAN
CENTRAL COMMITTEE; JOHN
SWANSON; POLK COUNTY
REPUBLICAN CENTRAL
COMMITTEE; CEDRIC
HAYDEN; JOHN LARGE; LANE
COUNTY REPUBLICAN
CENTRAL COMMITTEE,
Plaintiffs,
v.
ROB WAGNER, Oregon Senate
President, individually and in his
official capacity; LAVONNE
GRIFFIN-VALADE, Oregon
Secretary of State, in her official
capacity,
Defendants - Appellees.
No. 23-4292
D.C. No.
6:23-cv-01624-
AA
OPINION

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2 L INTHICUM V. WAGNER
Appeal from the United States District Court
for the District of Oregon
Ann Aiken, District Judge, Presiding
Argued and Submitted February 9, 2024
Portland, Oregon
Filed February 29, 2024
Before: Ronald M. Gould, Jay S. Bybee, and Daniel A.
Bress, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Bybee;
Concurrence by Judge Bress
SUMMARY*
First Amendment Retaliation/Legislative Power
The panel affirmed the district court’s denial of Oregon
State Senators Dennis Linthicum and Brian Boquist’s
motion for a preliminary injunction alleging First
Amendment retaliation and seeking to enjoin the Oregon
Secretary of State from disqualifying them from the 2024
election on the grounds that they each had accrued more than
ten unexcused absences.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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L INTHICUM V. WAGNER 3
An amendment to Oregon’s Constitution disqualifies
from the next election any state senator or representative
who has accrued ten or more unexcused absences from
legislative floor sessions. In 2023, Senators Linthicum and
Boquist engaged in a legislative walkout spanning several
weeks, each accumulating more than ten unexcused
absences. Oregon’s Secretary of State disqualified them
from appearing on the ballot for the 2024 election.
In their action brought pursuant to 42 U.S.C. § 1983, the
Senators sought a preliminary injunction, arguing that they
should not face the consequences of their walkout under the
Oregon Constitution because their absences constituted a
protest protected by the First Amendment.
The panel held that the Senators were unlikely to prevail
on the merits of their First Amendment retaliation
claim. Walkouts by legislators to deny a quorum to conduct
business in the legislature are exercises of legislative power
not protected under the First Amendment under the Supreme
Court’s decision in Nevada Commission on Ethics v.
Carrigan, 564 U.S. 117 (2011). The panel thus rejected the
Senators’ claim and further held that the First Amendment
does not protect the Senators from the application of Article
IV, § 15 of the Oregon Constitution.
Concurring, Judge Bybee stated that the per curiam
opinion correctly explains why the Senators were unlikely to
succeed in asserting a First Amendment retaliation claim
based on their inability to use legislative office to further the
expression of their personal views. He wrote separately to
respond to a distinct component of the Senators’ First
Amendment argument which asserted only their personal
right to free speech and disavowed any First Amendment
right to speak based on their status as legislators. Judge

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4 L INTHICUM V. WAGNER
Bybee described why the First Amendment does not cabin
the government’s ability to burden speech incidentally in the
pursuit of valid objectives. He then explained why, even
assuming there is some expressive value in the Senators’
walkouts, Oregon’s disqualification-provision satisfies this
Circuit’s precedents on content neutrality.
Concurring, Judge Bress stated that Carrigan’s
distinction between official legislative acts and personal
speech drives the resolution of this case. Broader
suggestions that otherwise protected legislator speech may
be suppressed under more forgiving standards to ensure a
better functioning legislature raise much more difficult
questions. Here, there was no need to tackle those issues
because under Carrigan, no personal First Amendment right
is implicated.
COUNSEL
Elizabeth A. Jones (argued), Capitol Legal Services, Salem,
Oregon; Vance D. Day, Law Offices of Vance D. Day,
Powell Butte, Oregon; James Bopp, Jr., The Bopp Law Firm,
Terre Haute, Indiana; for Plaintiffs-Appellants.
Dustin Buehler (argued), Attorney, Civil Appeals; Benjamin
Gutman, Solicitor General; Ellen F. Rosenblum, Oregon
Attorney General; Oregon Department of Justice, Salem,
Oregon; for Defendants-Appellees.
Misha Isaak, Stoel Rives LLP, Portland, Oregon, for Amicus
Curiae American Civil Liberties Union of Oregon.

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L INTHICUM V. WAGNER 5
OPINION
PER CURIAM:
Actions have consequences. When those actions might
be described as expressive in nature, the First Amendment
sometimes protects us from the repercussions that follow.
This is not one of those instances. A recent amendment to
Oregon’s Constitution disqualifies from the next election
any state senator or representative who has accrued ten or
more unexcused absences from legislative floor sessions. In
2023, State Senators Dennis Linthicum and Brian Boquist
engaged in a legislative walkout spanning several weeks,
each accumulating more than ten unexcused absences.
Oregon’s Secretary of State disqualified them from
appearing on the ballot for the 2024 election. The Senators
seek a preliminary injunction, arguing that they should not
face the consequences of their walkout under the Oregon
Constitution because their absences constituted a protest
protected by the First Amendment to the U.S. Constitution.
Under Nevada Commission on Ethics v. Carrigan, 564 U.S.
117 (2011), we must disagree. We affirm the district court’s
denial of a preliminary injunction.
I. BACKGROUND
The Oregon Constitution creates a Legislative Assembly
consisting of a Senate and a House of Representatives. Or.
Const. art. IV, § 1. The Senate has thirty members; the
House, sixty. Id. art. IV, § 2; see Or. Rev. Stats. § 188.305.
The Legislative Assembly is considered part-time because it
meets annually, but for a limited number of days. Subject to
certain exceptions, in odd-numbered years the Legislative
Assembly meets for no more than 160 days; in even-
numbered years, for no more than thirty-five days. Or.

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6 L INTHICUM V. WAGNER
Const. art. IV, § 10(1). The members of each house receive
a salary for their services “to be established and paid in the
same manner as the salaries of other elected state officers
and employees.” Id. art. IV, § 29; Or. Rev. Stats.
§ 171.072(1). The Constitution further provides that “[t]wo
thirds of each house shall constitute a quorum to do
business,” although “a smaller number may meet . . . and
compel the attendance of absent members.” Or. Const.
art. IV, § 12. If a house, with a quorum present, fails to
organize within the first five days, “the members of the
house so failing shall be entitled to no compensation . . .
until an organization shall have been effected.” Id. Any
member of either house has “the right to protest, and have
his protest, with his reasons for dissent, entered on the
journal [of the house].” Id. art. IV, § 26; see also id. art. IV,
§ 13 (providing that “[e]ach house shall keep a journal of its
proceedings”). And, “except for treason, felony, or breaches
of the peace,” the members are not subject to arrest during a
legislative session and may not “be questioned in any other
place” “for words uttered in debate in either house.” Id.
art. IV, § 9. “Either house,” however, “may punish its
members for disorderly behavior,” including by expulsion
from the house. Id. art. IV, § 15.
Because of the supermajority quorum requirement, a
minority of legislators may preclude legislative business
through their absence. Legislative walkouts in Oregon’s
legislature have become increasingly common in recent
years. See Knopp v. Griffin-Valade, 372 Or. 1, 4 (2024) (per
curiam). In direct response, more than sixty-eight percent of
Oregon voters approved Measure 113 in 2022, which

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L INTHICUM V. WAGNER 7
amended the “Punishment and expulsion of members”
provision of Oregon’s Constitution to include the following:
Failure to attend, without permission or
excuse, ten or more legislative floor sessions
called to transact business during a regular or
special legislative session shall be deemed
disorderly behavior and shall disqualify the
member from holding office as a Senator or
Representative for the term following the
election after the member’s current term is
completed.
Or. Const. art. IV, § 15. Shortly thereafter, the Oregon
Senate promulgated rules to implement and enforce the
amendment. Senate Rule 3.10(1) provides, in relevant part:
“A member shall attend all sessions of the Senate unless
excused by the President. A request by a member to be
excused from a session shall be in writing. The President
shall indicate approval or disapproval of the request in
writing.”
For the first several months of 2023, Senate President
Rob Wagner granted all requests for excusal, including those
from Senators Dennis Linthicum and Brian Boquist. The
Senators sought and received excusals for weather, home
repairs, family obligations, speaking engagements, medical
procedures, and undisclosed personal reasons.
But circumstances changed on May 3, 2023, when ten
Senators—Senators Linthicum and Boquist among them—
staged a walkout. In written excusal requests to Wagner,
Senators Linthicum and Boquist explained that they were
“protesting the refusal of the Senate to comply” with certain
Oregon laws and rules dealing with the readability of

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legislative summaries. Wagner did not grant their excusal
requests. Two days later, Wagner “announced that requests
for an excused absence[] on May 6 onward would be granted
only in ‘extraordinary circumstances.’” He also “revised
prior approvals for absences on and following May 6, 2023,
and reversed prior approvals for absences due to a family
event, a garden show, a family member[’]s graduation, and
to care for parents.” The record indicates that Wagner’s
strict enforcement of the absence policy applied to members
of both parties.
The walkout lasted until late June 2023. During that
period, Wagner granted excusal requests from members for
life-threatening medical circumstances, a meeting with
legislative staff regarding an ethics complaint, and a funeral.
He also excused Senator Boquist for two days when a water
line burst at the Senator’s farm. Wagner denied excusal
requests from other Senators, including for visits to family,
family health issues, illness, a wedding, and a child’s high-
school graduation. He also denied repeated requests for
excusals from Senators Linthicum and Boquist on the basis
of their protest.
All told, Senator Linthicum accrued thirty-two
unexcused absences; Senator Boquist accrued thirty. Each
Senator had sought, and was denied, more than ten excusals
for protest-related reasons. On September 20, 2023, the
Oregon Secretary of State determined that Senators
Linthicum and Boquist were ineligible to appear on the
ballot for the 2024 election because they had each accrued
more than ten unexcused absences.
The Senators filed suit under 42 U.S.C. § 1983 in the
U.S. District Court for the District of Oregon, alleging

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L INTHICUM V. WAGNER 9
violations of the First and Fourteenth Amendments.1 They
also moved for a preliminary injunction, seeking to enjoin
the Secretary of State from disqualifying them from the 2024
election. In their motion for preliminary injunctive relief,
the Senators made only a First Amendment retaliation claim.
The district court denied the motion for a preliminary
injunction. Most relevantly, the court reasoned that under
Nevada Commission on Ethics v. Carrigan, 564 U.S. 117
(2011), the First Amendment does not protect an exercise of
official legislative power—here, the “exercise of . . . official
power . . . meant to deprive the legislature of the power to
conduct business”—even if that exercise of power might
otherwise be characterized as expressive. The district court
reasoned that “the use of legislative walkouts is not
constitutionally protected activity for purposes of the Free
Speech Clause of the First Amendment.” The court
therefore concluded that the Senators had not established a
likelihood of success on the merits and were not entitled to a
preliminary injunction that would place them on the 2024
ballot.
The Senators timely appealed.
II. STANDARDS OF REVIEW
The Senators appeal the denial of a preliminary
injunction, which we review for abuse of discretion.
1 Five Senators, including Senator Linthicum, also brought a challenge
in state court to the Secretary of State’s rules interpreting the amendment
to Article IV, § 15. Those Senators argued that the new amendment
disqualified them for the term after the next term of office. The
Secretary’s rule disqualified the members for the next term after their
absences. On February 1, 2024, the Oregon Supreme Court upheld the
Secretary of State’s rule and decision to exclude the Senators from future
ballots. See generally Knopp, 372 Or. 1.

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Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023). “The
appropriate legal standard to analyze a preliminary
injunction motion requires a district court to determine
whether a movant has established that (1) he is likely to
succeed on the merits of his claim, (2) he is likely to suffer
irreparable harm absent the preliminary injunction, (3) the
balance of equities tips in his favor, and (4) a preliminary
injunction is in the public interest.” Id.; see also Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
This appeal principally concerns whether the Senators
have established a likelihood of success on the merits, which
is the most important preliminary injunction factor. See
Edge v. City of Everett, 929 F.3d 657, 663 (9th Cir. 2019).
III. DISCUSSION
The Senators here mount a claim of First Amendment
retaliation. “[T]he First Amendment prohibits government
officials from subjecting individuals to ‘retaliatory actions’
after the fact for having engaged in protected speech.”
Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474
(2022) (citation omitted). When an elected official brings an
action for First Amendment retaliation, he bears the burden
of proving that “(1) he engaged in constitutionally protected
activity; (2) as a result, he was subjected to adverse action
by the defendant . . . ; and (3) there was a substantial causal
relationship between the constitutionally protected activity
and the adverse action.” Boquist v. Courtney, 32 F.4th 764,
775 (9th Cir. 2022) (citation omitted). If the plaintiff official
makes a prima facie showing, “the burden shifts to the
defendant official to demonstrate that even without the
impetus to retaliate he would have taken the action
complained of.” Id. at 778 (citation omitted).

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L INTHICUM V. WAGNER 11
The Senators’ argument falters at the outset because they
cannot show that their walkout was constitutionally
protected activity. We agree with the district court that not
attending legislative sessions—depriving a legislature of the
quorum required to consider legislative action (or risking
that result)—is “an exercise of the power of the legislator’s
office” and therefore is not activity protected under the First
Amendment. In reaching that conclusion, the district court
relied soundly on the Supreme Court’s reasoning in Nevada
Commission on Ethics v. Carrigan, 564 U.S. 117 (2011).
Carrigan involved a Nevada state law that prohibited
legislators from voting on legislative matters in which they
were privately interested. Id. at 119–20. The Supreme Court
concluded that the rule did not run afoul of the First
Amendment because “a legislator has no right to use official
powers for expressive purposes.” Id. at 127. Voting in
legislative meetings, the Court explained, is “the
commitment of [the legislator’s] apportioned share of the
legislature’s power to the passage or defeat of a particular
proposal.” Id. at 125–26. Because “[t]he legislative power
thus committed is not personal to the legislator but belongs
to the people,” id. at 126, Nevada’s rule did not infringe any
personal right of the legislators guaranteed by the First
Amendment. Even if legislative voting were expressive, and
“even if the actor would like it to convey his deeply held
personal belief,” that fact “does not transform action into
First Amendment speech.” Id. at 127. The Court thus
explicitly “rejected the notion that the First Amendment
confers a right to use governmental mechanics to convey a
message.” Id.
The Senators resist Carrigan’s application here, arguing
the lack of First Amendment protection recognized in that
case extends only to a narrow concept of legislative power,

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limited “specifically and narrowly to ‘procedures for voting
in legislative assemblies . . . .’” We disagree. Voting may
be the quintessential exercise of the legislator’s “apportioned
share of the legislature’s power,” but it is not the only one.
Id. at 125. Under Carrigan, any official action in the
legislature that tends to “the passage or defeat of a particular
proposal,” is properly understood as a prerogative of
membership in that body. Id. at 125–26. No private citizen
enjoys the privilege to advance or frustrate legislative action
directly in the legislature. The ability to stymie legislation
by absenting oneself from a meeting of the Oregon Senate
belongs to Senators alone. The use of that power therefore
implicates the “governmental mechanics” of the legislative
process, and Carrigan makes clear that a legislator “has no
right” under the First Amendment to use that official power
“for expressive purposes.” Id. at 127. The Senators attempt
to claim a personal First Amendment right to walk out, but
Carrigan is clear that “[t]he legislative power thus
committed is not personal to the legislator but belongs to the
people; the legislator has no personal right to it.” Id. at 126.
We accordingly reject the Senators’ claim that their walkout
is anything other than an exercise of legislative power.2
2 The Senators also appear to argue that Carrigan does not apply by
distinguishing between affirmative actions, such as “considering and
voting upon bills,” and negative actions, such as “walking out to deny a
majority or a quorum.” The Senators claim the former are legislative
while the latter are not. This distinction is unpersuasive. First, it ignores
the fact that a vote can itself be negative; a “no” vote does not make law
but attempts to prevent law from being made. Second, as explained
above, the Carrigan Court defined legislative power much more broadly,
including all governmental acts that aid “the passage or defeat of a
particular proposal.” Id. at 125–26 (emphasis added).

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L INTHICUM V. WAGNER 13
Carrigan also instructs us that history can be relevant to
determining whether certain activity is protected by the First
Amendment. “[A] universal and long-established tradition
of prohibiting certain conduct creates a strong presumption
that the prohibition is constitutional . . . .” See id. at 122
(alteration in original) (quoting Republican Party of Minn. v.
White, 536 U.S. 765, 785 (2002)). In concluding that
Nevada’s law passed constitutional muster, Carrigan relied
on the fact that “such rules have been commonplace for over
200 years.” Id.; see also id. at 133 (Alito, J., concurring in
part and concurring in the judgment).
In this case, the historical tradition of legislatures
retaining the power to physically compel absent members to
attend legislative sessions bolsters our conclusion that the
Senators’ walkout is not protected First Amendment
expression. At the federal level, the Constitution sets a
majority of the members of each house of Congress as a
quorum and authorizes each house “to compel the
Attendance of absent Members, in such Manner, and under
such Penalties as each House may provide.” U.S. Const. art.
I, § 5, cl. 1. Each house also has the power to “punish its
Members for disorderly Behaviour . . . .” Id. art. I, § 5, cl. 2.
In fact, the Supreme Court has long upheld the power of each
house of Congress to imprison its members to compel their
presence:
As we have already said, the Constitution
expressly empowers each House to punish its
own members for disorderly behavior. We
see no reason to doubt that this punishment
may in a proper case be imprisonment, and
that it may be for refusal to obey some rule

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on that subject made by the House for the
preservation of order.
So, also, the penalty which each House is
authorized to inflict in order to compel the
attendance of absent members may be
imprisonment, and this may be for a violation
of some order or standing rule on that subject.
Kilbourn v. Thompson, 103 U.S. 168, 189–90 (1880).
Today, House Rule XX provides that a majority of at least
fifteen members “may order the Sergeant-at-Arms to send
officers appointed by the Sergeant-at-Arms to arrest those
Members for whom no sufficient excuse is made and shall
secure and retain their attendance.” House Rule XX,
cl. 5(b). The Senate’s rules are comparable. See Senate
Rule VI, cl. 4. Each house may exercise its powers under
these rules to compel the attendance of absent members.
Oregon’s Constitution contains a similar provisions. See Or.
Const. art. IV, § 12. Although the provision we consider in
Article IV, § 15 of the Oregon Constitution involves a
different incentive for legislative attendance—the threat of
disqualification—the historical tradition of the compulsion
power confirms that legislators have no underlying personal
First Amendment right not to be present in the legislature for
official legislative business. See Carrigan, 564 U.S. at 122.
Our decision in Boquist v. Courtney, 32 F.4th 764 (9th
Cir. 2022) does not direct a different result here. In Boquist,
we concluded that a district court erred in dismissing a claim
brought by Senator Boquist—who is also a plaintiff in this
case—challenging an Oregon Senate Special Committee
policy, adopted by those in the opposite political party,
which required that Boquist provide 12 hours’ advance
notice of his intent to enter the State Capitol. Id. at 772–73.

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L INTHICUM V. WAGNER 15
This rule was imposed after Boquist made statements on the
Senate floor and to a reporter, statements that other Senators
claimed were threatening. Id. at 773. We held that the
complaint raised “a plausible inference” that Senator
Boquist’s statements were protected speech. Id. at 780.
Boquist was a very different case. Senator Boquist there
was not exercising the “legislative power” as Carrigan
conceived it; he was making statements, including to a
reporter, not engaging in a “governmental act.” Carrigan,
564 U.S. at 128. Indeed, Carrigan drew a distinction
between the First Amendment’s lack of protection for a
legislator engaging in “a governmental act” or using
“governmental mechanics” of the legislative process, and the
personal rights of legislators to engage in speech. Id. at 127.
As Carrigan noted, “[a] legislator voting on a bill is not
fairly analogized to one simply discussing that bill or
expressing an opinion for or against it. The former is
performing a governmental act as a representative of his
constituents; only the latter is exercising personal First
Amendment rights.” Id. at 128 n.5 (internal citation
omitted).3
3 We also note that the 12-hour notice rule at issue in Boquist, which
“bar[red] an elected official from the legislative chamber,” was both
historically unsupported and directly contrary to the effect of the Oregon
rule here, which seeks to incentivize legislators to be present for
legislative sessions. 32 F.4th at 782. This case is further unlike Boquist
because there is no indication in the record that the Senate President
failed to excuse the Senators’ absences because of the content of their
putative expressive conduct. In fact, the Senate President declined to
excuse most requests for absences from all Senators, regardless of party.
Senators Boquist and Linthicum were the only Senators disqualified
from running in the 2024 election, not because of their party affiliation
or expression, but because they were the only Senators seeking re-
election who accrued ten or more absences.

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We think, for the reasons already given, that the walkout
here is more clearly analogous to the voting in Carrigan than
the personal speech at issue in Boquist. We therefore hold
that walkouts by legislators to deny a quorum to conduct
business in the legislature are exercises of legislative power
not protected under the First Amendment under the Supreme
Court’s decision in Carrigan. We thus reject the Senators’
claim and further hold that the First Amendment does not
protect the Senators from the application of Article IV, § 15
of the Oregon Constitution.
IV. CONCLUSION
We conclude that the Senators are unlikely to prevail on
the merits of their First Amendment retaliation claim.
Although we need not proceed to analyze the remaining
preliminary injunction factors, it should be clear from the
foregoing that we perceive no legal or factual error in the
district court’s analysis and therefore find no abuse of
discretion. We affirm the district court’s denial of a
preliminary injunction.
AFFIRMED.
BYBEE, Circuit Judge, concurring:
Our per curiam opinion correctly explains why the
Senators are unlikely to succeed in asserting a First
Amendment retaliation claim based on their inability to use
legislative office to further the expression of their personal
views. I concur in that opinion in full.
I write separately to respond to a distinct component of
the Senators’ First Amendment argument. In their briefs and
at oral argument, the Senators claimed that they were

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L INTHICUM V. WAGNER 17
asserting only their personal right to free speech. That is,
the Senators claimed that they were seeking to vindicate only
the same First Amendment rights held by all citizens. See
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“[P]ublic
employees do not surrender all their First Amendment rights
by reason of their employment.”); Huppert v. City of
Pittsburg, 574 F.3d 696, 702 (9th Cir. 2009). They
disavowed claiming any First Amendment right to speak
based on their status as legislators. The reason for this
strategic decision is obvious: Nevada Commission on Ethics
v. Carrigan, 564 U.S. 117 (2011), answers any claim to a
special First Amendment right to speak in a legislative
capacity. The per curiam opinion fully explains why any
such claim fails under Carrigan. But because the Senators
invoked in no uncertain terms a personal right to protest, I
feel obligated to explain why the argument the Senators tried
to make fails under the First Amendment. And in so doing,
I endeavor to show why—despite their protestations—the
Senators are in truth asserting a legislative right.
I first describe why the First Amendment does not cabin
the government’s ability to burden speech incidentally in the
pursuit of valid objectives. I then set out why, even
assuming there is some expressive value in the Senators’
walkouts, Oregon’s disqualification-provision satisfies our
precedents on content neutrality.
I
The freedom of speech protected by the First
Amendment, although colloquially denominated a right, is

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better characterized as a privilege or an immunity.1 We
enjoy a privilege to speak freely, including the privilege of
criticizing our elected officials, and the government has no
right to suppress our criticism. Stated alternatively, our
speech is generally immune from government regulation
because the government is disabled by the First Amendment.
The First Amendment deprives the government of power to
suppress our speech. “[W]e must recall that the exact
wording of the First Amendment—“Congress shall make no
law”—“precisely track[s] and invert[s] the exact wording of
the Article I, section 8 necessary-and-proper clause:
‘Congress shall have power . . . to make all laws which shall
be necessary and proper . . . .’” Akhil Reed Amar, The Bill
of Rights 39 (1998); cf. Or. Const. art. I, § 8 (“No law shall
be passed restraining the free expression of opinion, or
restricting the right to speak, write, or print freely on any
subject whatever; but every person shall be responsible for
the abuse of the right.”). If there is any question of the scope
of the powers conferred on the legislature, the First
Amendment makes clear the power to abridge speech is
affirmatively withdrawn.2
1 The First Amendment, made applicable to the states through the Due
Process Clause of the Fourteenth Amendment, provides in relevant part:
“[The States] shall make no law . . . abridging the freedom of
speech . . . .” U.S. Const. amend. I.
2 Our First Amendment privilege/immunity to speak our mind is subject
to well-known exceptions. See, e.g., Brandenburg v. Ohio, 395 U.S. 444,
447 (1969) (“[T]he constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or
produce such action.”); Chaplinsky v. New Hampshire, 315 U.S. 568,

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L INTHICUM V. WAGNER 19
The fact that we have a privilege to speak our minds
freely does not confer an unlimited and freewheeling
immunity from the consequences of our speech. We do not
have the privilege of speaking “whenever and however and
wherever [we] please.” Menotti v. City of Seattle, 409 F.3d
1113, 1155 (9th Cir. 2005) (quoting Greer v. Spock, 424 U.S.
828, 836 (1976)). For that reason, the First Amendment does
not withdraw from the government the ability to regulate
conduct unrelated to the content of one’s expression, even if
the regulation “has an incidental effect on some speakers or
messages but not others.” Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). When a law regulates “conduct
itself” rather than “the message conveyed by that conduct,
the regulation is subject to the lesser scrutiny given to
content-neutral restrictions.” United States v. Swisher, 811
F.3d 299, 312 (9th Cir. 2016) (en banc).
Let’s take a simple example. A high school student who
works at the drive-through window at McDonald’s is not
excused from work because she is at a political rally.
McDonald’s, which is not a state actor subject to the First
Amendment, may dismiss her even though she is engaged in
constitutionally protected activity. I know of no principle in
First Amendment jurisprudence that would shield state
employees from similar consequences. If a public school
571–72 (1942) (“There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which have never
been though to raise any constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or fighting
words . . . .”). Those exceptions are content-based, but other efforts to
suppress speech based on its content must run the gauntlet of strict
scrutiny. Our freedom of speech is also subject to certain content-neutral
restrictions related to time, place, and manner. See generally Ward v.
Rock Against Racism, 491 U.S. 781 (1989).

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20 L INTHICUM V. WAGNER
teacher fails to show up for class, she is not excused from
work because she is attending the same political rally as her
student who works at McDonald’s. And it would not make
any difference if the rally was in support of better funding
for public education, or if the teacher was joined by
thousands of other teachers, collectively exercising their
First Amendment rights. Public employees who fail to go to
work have been subject to injunctions, see San Diego Tchrs.
Ass’n v. Superior Ct. of San Diego, 593 P.2d 838, 846–47
(Cal. 1979) (in bank) (recognizing the power of California’s
Public Employment Relations Board to enjoin teacher
strikes); Sch. Dist. No. 351 Oneida Cnty. v. Oneida Educ.
Ass’n, 567 P.2d 830, 833 (Idaho 1977) (rejecting a
constitutional challenge to an injunction because public
school teachers have no right to strike), dismissal, see
Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n,
426 U.S. 482, 495–96 (1976) (affirming the states’ power to
terminate teachers who strike); Pro. Air Traffic Controllers
Org. v. FLRA, 685 F.2d 547, 551–552 (D.C. Cir. 1982)
(discussing President Reagan’s decision to fire 11,000
striking air traffic controllers), and even criminal
prosecutions, see United States v. Taylor, 693 F.2d 919 (9th
Cir. 1988) (upholding the convictions of traffic controllers
under 18 U.S.C. § 1918, prohibiting strikes against the
federal government). The First Amendment does not excuse
their absences. See Aircraft Serv. Int’l., Inc. v. Int’l. Bhd. of
Teamsters, AFL CIO Local 117, 742 F.3d 1110, 1122 (9th
Cir. 2014) (“[W]e have been unable to identify any case in
the Supreme Court or any of the courts of appeal invalidating
a strike injunction . . . because of First Amendment
concerns. To the contrary, the Court has consistently found
that actions inconsistent with national labor laws are
generally not protected by the First Amendment.”), on reh’g

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L INTHICUM V. WAGNER 21
en banc sub nom. Aircraft Serv. Int’l, Inc. v. Int’l Bhd. of
Teamsters, 779 F.3d 1069 (9th Cir. 2015). The Senators
have not offered any reason why they should be treated
differently from any other state employee; after all, the
Senators themselves claim a personal right, not a right
derivative of their elected office. They have to show up for
work just like everyone else.
Notwithstanding these principles, the Senators doubled
down at oral argument, insisting that they were excused from
any attendance-related rules created by the Oregon
Constitution or Oregon Senate because they were off
exercising their First Amendment rights. Here is where the
Senators fundamentally misunderstand the First
Amendment. They argue that because they were exercising
a free speech right, they were excused from other rules. That
is an argument that has been made with respect to the Free
Exercise Clause, one that remains controversial. Compare
Emp. Div., Dep’t of Hum Res. of Or. v. Smith, 494 U.S. 872,
878–79 (1990) (“We have never held that an individual’s
religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free
to regulate.”) with City of Boerne v. Flores, 521 U.S. 507,
546 (1997) (O’Connor, J., dissenting) (advocating
overruling Smith because “the [Free Exercise] Clause is best
understood as an affirmative guarantee of the right to
participate in religious practices and conduct with
impermissible governmental interference, even when such
conduct conflicts with a neutral, generally applicable law”);
see also Fulton v. City of Philadelphia, 593 U.S. 522, 545
(2021) (Alito, J., concurring) (expressing the view that Smith
“is fundamentally wrong and should be corrected”). It is not
a proposition that can be sustained under the Free Speech
Clause, at least not without showing how the law suppresses

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22 L INTHICUM V. WAGNER
constitutionally protected speech. See Virginia v. Hicks, 539
U.S. 113, 123 (2003) (noting that persons barred from a
public forum may “not return—regardless of whether, upon
their return, they seek to engage in speech”); IMDb.com Inc.
v. Becerra, 962 F.3d 1111, 1120 (9th Cir. 2020) (“[A] law of
general applicability does not ‘offend the First Amendment
simply because [its] enforcement’ may have an ‘incidental
effect[]’ on speech.” (second and third alterations in
original) (citation omitted)). The Senators have made an
argument more appropriate if they were trying to preserve
their religious rights, rather than their right to free speech.
In the end, the Senators resist these well-settled
principles by noting that they are elected officials, not
employees. When they do so, they take themselves out of
the class of “citizens just like everyone else” and move
themselves into the special class of “citizens serving as
legislators.” That is where Carrigan comes in. Carrigan
involved a Nevada law that required lawmakers to recuse
themselves from voting for legislation in which they had a
personal interest. But more than that rule was at issue in the
case. Nevada’s law also precluded lawmakers from
“advocat[ing] the passage or failure” of any proposal from
which they were recused. Carrigan, 564 U.S. at 122. The
Supreme Court upheld this rule against a challenge based on
recused legislators’ personal First Amendment rights. A
recused legislator, thus stripped of his ability to vote on the
passage of legislation, possesses no more speech rights than
any other private citizen. Consequently, although he retains
a personal right to comment on the proposed legislation
generally, such speech is subject to “reasonable time, place,
and manner limitation[s].” Id. The Court took for granted
that one who does not have a right to vote in the legislature—
whether a recused legislator or an ordinary private citizen—

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L INTHICUM V. WAGNER 23
may properly be excluded from speaking at legislative
sessions because the sessions “would become massive town-
hall meetings if those who had a right to speak were not
limited to those who had a right to vote.” Id. at 121.
Carrigan thus stands for the proposition that a State may
incidentally burden the personal First Amendment rights of
state legislators when the exercise of such rights would
disrupt the functioning of the legislature. The Senators’
expressive walkout does not excuse them from the Oregon
rules regarding attendance at work.
II
Even if I thought that the Senators’ absences were
protected expressive conduct, they still could not prevail.
Like the ethics rule at issue in Carrigan, Oregon’s
disqualification provision is facially content-neutral. 3 A
content-neutral law survives intermediate scrutiny so long as
it is “narrowly tailored to serve a significant governmental
interest, and . . . leave[s] open ample alternative channels for
communication of the information.” Doe v. Harris, 772 F.3d
563, 576–77 (9th Cir. 2014) (first alteration in original)
(quoting Rock Against Racism, 491 U.S. at 791). The
Senators wisely do not contest Oregon’s considerable
interest in ensuring the sound functioning of the state
legislature. They instead focus their challenge on the
narrow-tailoring prong. In particular, they argue that
disqualification is more speech-restrictive than necessary
because the “Senate could have compelled the return of
3 As the per curiam opinion correctly points out, the record is devoid of
any suggestion that Article IV, § 15 was applied in a discriminatory
fashion based on the content of senators’ expression.

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24 L INTHICUM V. WAGNER
absent members . . . under Or. Const. art. IV, § 12 (Oregon’s
‘compulsion of attendance’ provision), but chose not to.”
The Senators misapprehend structural constitutional
principles in general and First Amendment narrow-tailoring
analysis in particular. I address each in turn.
A
The power of States to devise content-neutral rules is at
its apex when choosing how to organize their public
institutions. A fundamental precept of our constitutional
design is that “States retain broad autonomy in structuring
their governments . . . .” Shelby Cnty., Ala. v. Holder, 570
U.S. 529, 543 (2013). Oregon’s Constitution parallels the
U.S. Constitution in authorizing legislators to compel the
attendance of absent members. See Or. Const. art. IV, § 12;
U.S. Const. art. I, § 5, cl. 1. The Senators’ argument, in
essence, asks us to impose on all States the federal
mechanism by which our national Congress ensures a
quorum. To be sure, Congress’s extant attendance rules
have worked relatively well. Because a simple majority is
often sufficient to pass legislation, see U.S. Const. art. I, § 5,
cl. 1, member absence rarely frustrates legislative business.
But the design of our national Congress is not the only
way to constitute a legislature. Most states define a quorum
as a majority of members, but four states—including
Oregon—require two-thirds of total members. See
Ballotpedia, Noteworthy State Legislative Walkouts (last
accessed Feb. 12, 2024), https://perma.cc/ZX8Z-9MFW.
Even among states that generally require only a majority of
members for a quorum, some impose a supermajority
requirement when voting on certain pieces of legislation.
See, e.g., Del. Const. art. II, § 19, cl. 1; Nev. Const. art. 4,
§ 18.2. These variations at times create problems unique to

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L INTHICUM V. WAGNER 25
a state’s legislative design. In Oregon’s case, the
combination of the supermajority quorum requirement and a
part-time legislative session makes walkouts peculiarly
disruptive. As the district court found, the compelled-
attendance provision notwithstanding, Oregon’s “legislature
has been intermittently paralyzed by walkouts.”
Oregon voters recognized the need to secure the
attendance of legislators with new incentives. They thus
turned to a potent tool of direct democracy—the
constitutional initiative—to address a problem that strikes at
the heart of its representative democracy: the failure of its
legislature to legislate. Or. Const. art. IV, § 1 (“reserv[ing]
to the people” the right to legislate through initiative and
referendum). The initiative’s “invention . . . was in full
harmony with the Constitution’s conception of the people as
the font of government power.” Ariz. State Legislature v.
Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 819
(2015). Oregon in particular has a venerable history of direct
democracy. It was “the first State to adopt the initiative as a
means, not only to enact ordinary laws, but also to amend the
State’s Constitution.” Id. at 794. Oregon has used the
initiative nearly four-hundred times in the last century, the
highest among all states in the Union. Jeffrey S. Sutton, Who
Decides? 354 (2022). It is the people’s work-around to a
recalcitrant legislature. The alacrity and ability of Oregon’s
citizens to amend their own state constitution is a hallmark
of our tradition of representative democracy. “Constitutions
say who is in charge. Amendments remind politicians that
it is not them. The capacity to change a constitution respects
a truth in any democracy, that the people hold the ultimate
reins on power.” Id. at 333. Measure 113 is the federalist
system in action.

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26 L INTHICUM V. WAGNER
To be sure, the Senators’ primary complaint is with
Oregon’s chosen mechanism—disqualification—rather than
the notion that States might recur to other processes by
which they can secure a quorum. But a state’s power to
regulate the qualifications for state office “is a decision of
the most fundamental sort for a sovereign entity.” Gregory
v. Ashcroft, 501 U.S. 452, 460 (1991). The Supreme Court
has reiterated as “obviously essential to the independence of
the States, and to their peace and tranquility, that their power
to prescribe the qualifications of their own officers . . .
should be exclusive, and free from external interference,
except so far as plainly provided by the Constitution of the
United States.” Id. (quoting Taylor v. Beckham, 178 U.S.
548, 570–71 (1900)).
This is not merely an academic detour. These federalism
principles reify Oregon’s significant interest in securing the
sound functioning of its legislature. They are also instructive
in the narrow-tailoring analysis below. Although the
Constitution is doubtlessly an outer limit on the States’
authority to establish qualifications for their own legislators,
“our scrutiny will not be so demanding where we deal with
matters resting firmly within a State’s constitutional
prerogatives.” Id. at 462 (citation omitted); accord Shooter
v. Arizona, 4 F.4th 955, 963 (9th Cir. 2021). “This rule ‘is
no more than . . . a recognition of a State’s constitutional
responsibility for the establishment and operation of its own
government, as well as the qualifications of an appropriately
designated class of public office holders.’” Gregory, 501
U.S. at 462 (alteration in original) (citation omitted).
B
With those guiding principles in mind, I turn now to the
narrow-tailoring prong of our precedents on content

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L INTHICUM V. WAGNER 27
neutrality. Importantly, we do not require a content-neutral
regulation to be “the least speech-restrictive means of
advancing the Government’s interests.” Doe, 772 F.3d at
577 (citation omitted). Instead, “the test is whether the
means chosen . . . burden[s] substantially more speech than
is necessary to further the government’s legitimate
interests.” Id. (alterations in original) (citation and quotation
marks omitted).
Application to the Senators of Article IV, § 15 does not
burden substantially more speech than necessary, for at least
two reasons. First, disqualification leaves open the most
important channels of expression. During the session, the
Senators could have exercised their right under the Oregon
Constitution, as legislators, “to protest, and have [their]
protest, with [their] reasons for dissent, entered on the
journal [of the Senate].” Or. Const. art. IV, § 26. They
could have spoken to reporters or their constituents any time
they were not required to be in session. They could have
issued a press release. The possibilities are endless, so long
as they are physically present when required by the Oregon
Constitution. Whatever additional expressive value the
Senators find in a walkout is beside the point, because “[t]he
guarantees of the First Amendment have never meant that
people who want to propagandize protests or views have a
constitutional right to do so whenever and however and
wherever they please.” Menotti, 409 F.3d at 1155 (quoting
Greer, 424 U.S. at 836). Even setting those alternatives
aside, Oregon’s Constitution does not invariably foreclose
the Senators’ preferred mode of expression; the Senators
could have walked out in protest nine times before facing
disqualification.
Second, other compulsion-of-attendance procedures—
which the Senators concede would not violate the First

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28 L INTHICUM V. WAGNER
Amendment—are, at least to my mind, more speech
restrictive than disqualification. Physically compelling the
presence of the Senators would necessarily terminate the
very walkout that the Senators claim is protected. The
Senators also concede that Oregon could imprison them for
their absence as a punishment, not merely as a corrective
mechanism to achieve their attendance. See Kilbourn v.
Thompson, 103 U.S. 168, 189–90 (1880). If Oregon may
lawfully imprison absent lawmakers as punishment, it may,
a fortiori, impose the less restrictive civil disability of
disqualification. Disqualification from re-election comes
with no additional penalties; as citizens, the former senators
retain all of their First Amendment rights to criticize the
Oregon Legislative Assembly. The Senators nevertheless
press that disqualification is more speech-restrictive than
imprisonment because it prospectively forecloses their direct
access to the legislative forum. But the First Amendment
grants them no unqualified entitlement to their office. And,
for the reasons explained in our per curiam opinion, any
expressive conduct available only by dint of their office is
not protected by the First Amendment.
III
For the foregoing reasons, I conclude that the Senators’
claim that their personal right to protest shields them from
disqualification under Article IV, § 15 of the Oregon
Constitution is unlikely to succeed on the merits. Although
these arguments were ultimately meritless, I feel the parties
deserve due consideration of each of their claims. For the
reasons expressed in our per curiam opinion and in this
concurrence, I join the panel in concluding that the district
court did not abuse its discretion in denying the Senators’
motion for a preliminary injunction.

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L INTHICUM V. WAGNER 29
BRESS, Circuit Judge, concurring:
Today’s per curiam opinion correctly and sufficiently
resolves this case under Nevada Commission on Ethics v.
Carrigan, 564 U.S. 117 (2011). Carrigan is clear that
legislators have no First Amendment speech rights in a
“governmental act” that constitutes part of the exercise of
“legislative power.” Id. at 126, 128. Applying that rule of
law to a state legislator’s claimed First Amendment right to
vote over and above a Nevada conflict-of-interest recusal
rule, the Supreme Court in Carrigan concluded that “[e]ven
if it were true that the vote itself could ‘express deeply held
and highly unpopular views,’ the argument would still miss
the mark” because “[t]his Court has rejected the notion that
the First Amendment confers a right to use governmental
mechanics to convey a message.” Id. at 127 (citation
omitted). Thus, “a legislator has no right to use official
powers for expressive purposes.” Id.
Carrigan answers this case because the Senators here
claim a First Amendment right not to attend legislative
sessions where their non-attendance either precludes a
legislative quorum or threatens that result. Even if this act
could have expressive connotations, as in Carrigan, it is a
“governmental act” that is part of the exercise of “legislative
power”—the attempted “use [of] governmental mechanics
to convey a message,” for which the Senators receive no
First Amendment protection. Id. at 126–28.
In addition, like in Carrigan, a substantial historical
tradition supports the conclusion that the Senators here have
no underlying First Amendment right to their claimed
expression. In Carrigan, that history consisted of long-
accepted legislative recusal rules. See id. at 122–24. Here,
as the per curiam opinion describes, we have a long and

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30 L INTHICUM V. WAGNER
constitutionally enshrined history of rules allowing
legislatures to compel the attendance of absent members.
That legislators can be compelled to return to the seat of
power, even to the point of imprisonment, shows they have
no personal First Amendment right to be absent.
Judge Bybee’s separate concurring opinion goes
considerably further, believing that more analysis is needed
to show that the Senators’ personal right to free speech was
not infringed. That journey into uncharted First Amendment
waters is unnecessary and rests on an incomplete
understanding of Carrigan. The Senators’ asserted personal
right here is inconsistent with Carrigan, which makes clear
that “[t]he legislative power thus committed is not personal
to the legislator but belongs to the people.” Id. at 126. Judge
Bybee’s concurring opinion thus engages with a
hypothetical personal right that the Supreme Court has said
does not exist.
In the process, that concurrence takes a broader view of
the ability of states to curtail what it assumes would be state
legislators’ otherwise protected speech. The concurrence
states that Carrigan “stands for the proposition that a State
may incidentally burden the personal First Amendment
rights of state legislators when the exercise of such rights
would disrupt the functioning of the legislature.” But
Carrigan does not support that far-reaching proposition.
Carrigan holds that certain acts which are governmental in
nature and inhere in the “legislative power” are not among
the personal rights of individual legislators, so that
legislators have no personal First Amendment claim to them.
Carrigan is not about the permissible burdening of personal
First Amendment rights, but about whether there are such
rights in the first place (making clear that for official
legislative acts, there are not).

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L INTHICUM V. WAGNER 31
The Nevada recusal rule in Carrigan did also prevent
any legislator with a conflict of interest in the proposal from
“advocat[ing] the passage or failure” of that initiative, which
Carrigan regarded as a permissible time, place, and manner
restriction. Id. at 121–22. But on this point, the Supreme
Court was careful to treat the prohibition on advocacy of a
legislative proposal as “evidently meaning advocating its
passage or failure during the legislative debate.” Id. at 121
(emphasis added). With that cabined understanding,
Carrigan had little difficulty concluding that such a
restriction was permissible: “[l]egislative sessions would
become massive town-hall meetings if those who had a right
to speak were not limited to those who had a right to vote.”
Id.; see also id. (“Neither Carrigan nor any of his amici
contend that the prohibition on advocating can be
unconstitutional if the prohibition on voting is not.”).
But to say that someone without a vote cannot participate
in formal legislative debates is a far more straightforward
constitutional issue than the one Judge Bybee’s concurrence
poses and then endeavors to answer, which involves the
application of First Amendment scrutiny to a state
constitutional amendment that in this case results in Senators
being disqualified from office for acts of political protest.
Under Carrigan, there is no need to engage with this more
involved question because legislators have no First
Amendment right to deprive their legislature of a quorum,
however expressive this act of protest may be. But if one is
to go ahead and (unnecessarily) assume the existence of a
counter-Carrigan personal First Amendment right, as Judge
Bybee’s concurrence does, I think the matter would require
more consideration than the concurrence lets on.
Emphasizing principles of federalism and deference to
state processes announced in cases outside the First

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32 L INTHICUM V. WAGNER
Amendment context, the concurrence relies heavily on
“Oregon’s considerable interest in ensuring the sound
functioning of the state legislature,” as well as the state’s
related interest in avoiding the disruption of the legislative
process. These interests are stated at a very high level. The
concurrence also compares state legislators to other public
employees, such as air traffic controllers, and finds Oregon’s
approach narrowly tailored because the Senators have other
avenues of communication. I question whether this analysis
appropriately accounts for the real risks attendant to actual
speech restrictions of legislators. If we were truly dealing
with a personal First Amendment right (again, we are not),
more scrutiny would be warranted. We do not accept the
argument that ensuring the “sound functioning” of society
justifies the suppression of unpopular views. The “sound
functioning of the state legislature” should provide no
greater justification for unlawful restrictions on speech,
especially political speech that the First Amendment so
highly values.
The fear that legislative processes could inflict First
Amendment harm on legislators is not merely hypothetical.
Our recent decision in Boquist v. Courtney, 32 F.4th 764 (9th
Cir. 2022) allowed an Oregon state Senator’s First
Amendment claim to proceed because he plausibly alleged
First Amendment retaliation for political speech made in a
legislative context. As today’s per curiam notes, the
Supreme Court in Carrigan was careful to distinguish
between a legislator performing a legislative act and a
legislator engaging in political speech in a legislative setting:
“A legislator voting on a bill is not fairly analogized to one
simply discussing that bill or expressing an opinion for or
against it. The former is performing a governmental act as a
representative of his constituents; only the latter is exercising

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L INTHICUM V. WAGNER 33
personal First Amendment rights.” Carrigan, 564 U.S. at
128 n.5 (internal citation omitted).
It is this critical distinction from Carrigan between
official legislative acts and personal speech that drives the
resolution of this case. Broader suggestions that otherwise
protected legislator speech may be suppressed under more
forgiving standards to ensure a better functioning legislature
raise much more difficult questions. We had no need to
tackle those issues because under Carrigan, no personal
First Amendment right is implicated here. That is why the
per curiam opinion correctly and appropriately stops where
it does.

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