This post recently caught my eye.  It discusses a recent decision by the Ninth Circuit Court of Appeals that upheld dismissals of claims by a candidate for Mayor of San Francisco.  Supporters of Ellen Lee Zhou had put up billboards featuring the current mayor, London Breed, driving a red bus with the text “Werewolves of London Tours” near cars with smashed windows. Additional text read, “Vote Nov. 5 for Super Mayor Ellen Lee Zhou!”

At a press conference that took place shortly after the billboards went up, State Assemblyman David Chiu and members of the Board of Supervisors denounced the billboards, claiming they were racist, misogynistic and sexist.  Breed gave a media interview in which she said, “‘[The billboard] is hurtful, it’s disrespectful and it is no place [sic], I think in San Francisco for that kind of divisiveness.'”

Clear Channel soon after removed the billboards.

Ms. Zhou’s suit claimed that Mayor Breed and Clear Channel’s actions violated The First Amendment, and that Clear Channel breached its contract.  Both claims had fatal flaws.

As for the First Amendment claim against the city and the Mayor, Ms. Zhou seemed to have forgotten that government actors have First Amendment rights too.  The Mayor was free to criticize the billboards. And the complaint didn’t allege that she engaged in any coercive conduct beyond criticizing the boards.  Absent some allegation that the Mayor presented Clear Channel with the actual or threatened imposition of government power or sanction” Zhou stated no actionable claim.

As for Clear Channel, a private actor, there is no First Amendment claim.  As I’ve said many times in this blog, The First Amendment applies only to government action.  Clear Channel isn’t subject to First Amendment limits on its actions.

And Clear Channel avoided breach of contract liability because its contract expressly reserved the right, at its sole discretion, to remove any advertising material “for any reason or no reason at any time during the term of [the contract].”  The court merely applied this term, and it left Ms. Zhou in the lurch.  Tough result, but contractual terms matter.  She tried to argue that the duty of good faith and fair dealing required a different result.  But that implied duty can’t trump terms that are in direct contravention.

Tough result, but perhaps Ms. Zhou can drown her sorrows with a pina colada at Trader Vic’s and focus on a real injustice, like why Warren Zevon isn’t in the Rock and Roll Hall of Fame.