City Council expulsion did not violate the First Amendment

Here's an interesting First Amendment case involving an elected official who was expelled from the New York City Council. He says he was kicked off the Council because of his political views, but the Court of Appeals says the real reason was his misconduct, which means he has no case.

 

The case is King v. City of New York, a summary order issued on March 8. Plaintiff says he ruffled feathers when he spoke out against gay marriage, gender-neutral public bathrooms, and allowing children to change their gender status on birth certificates. He expressed such opposition because of his – and his constituents’ – views on “the Bible’s teachings on homosexuality.” He also refused to honor the victims of the Pulse nightclub shooting. 

 

Since this case was dismissed under Rule 12, you might expect that the trial court would find that a factual dispute over the Council’s motive in expelling him from the Council would require some discovery to determine what really motivated the expulsion. Motive is usually for the factfinder. That might have been the result had the Supreme Court not issued new pleading standards in 2007 and 2009, what we now call Iqbal/Twombly plausibility-pleading requirements. Under these more recent standards, the trial court dismissed the case, and the Court of Appeals (Livingston, Menashi and Nardini) affirms, holding that the complaint does not assert a plausible claim.

 

The Court of Appeals notes that the Council’s investigation into plaintiff began when someone filed a sexual harassment charge against him. The Court identifies a pleading deficiency here. While plaintiff says this charge was politically-motivated, the Court says plaintiff has not detailed how City officials instigated this sexual harassment charge and urged the victim to file it against plaintiff. There were other sexual harassment charges against plaintiff, but the Complaint says nothing about how defendants instigated those charges. While plaintiff says he was singled out and that other wrongdoers were not expelled from the Council, the Court of Appeals says they did not engage in comparable conduct and had only engaged in “the harassment of staff members, the improper use of government funds, and the solicitation of a kickback.” That conduct looks comparable or at least quite serious to me, but the Court of Appeals says otherwise. 

 

These pleading deficiencies allow the Court to reach and “obvious alternative explanation” for plaintiff’s expulsion from the Council, which made serious allegations against plaintiff, including his alleged retaliation against his staff, allowing workplace harassment to persist in his office, allowing his spouse to use government resources for personal use, and his failure to reimburse staff for expenses. Under the pleading standards that the Supreme Court adopted 15 years ago, the Court may weigh the allegations to determine whether plaintiff’s claims are plausible or whether another obvious reason explains the adverse action. The Court finds it implausible that defendants’ actions “were motivated by political disagreements from years earlier.”