Musk vows free speech suit against Coastal Commission

Does Elon Musk have a case if he chooses to sue the California Coastal Commission? Attorneys say maybe -- but it could be a difficult one to prove.

Musk issued the threat on his social media platform, X, on Saturday. The comment came in response to a story reposted by a popular account suggesting the commission rejected his request for permission for more SpaceX launches at a base in Southern California in part because of commissioners' dislike of Musk's political views.

"Denying a license - or other government retaliation - based on an applicant's political speech (or the political speech of the applicant's owner or manager) generally violates the First Amendment," Eugene Volokh, a UCLA School of Law professor and a senior fellow at the Hoover Institution, commented in an email. "Indeed, that's even true of denial of a contract, where government money is being used."

But Thursday's 6-4 commission vote came after a long, public meeting that also covered several other topics. These included the environmental damage additional launches can cause --Vandenberg Space Force Base sits amid thousands of acres of wetlands -- and complaints from nearby communities about sonic booms.

Volokh pointed to a case in which the U.S. Supreme Court ruled in favor of a garbage hauling contractor who claimed a county board of commissioners terminated his contract because he criticized them. Board of Commissioners, Wabaunsee County v. Umbehr, 518 US 668 (1996).

"The question is whether SpaceX can show that, were it not for Musk's politics, SpaceX would have gotten the license," Volokh added. "The question isn't just whether the commission had other valid reasons to reject the application, but rather whether it would have acted the same way on those reasons had Musk's politics been different."

During the meeting, commission Chair Caryl Hart said Musk "has aggressively injected himself into the presidential race." Commissioner Gretchen Newsom criticized Musk for "spewing and tweeting political falsehoods and attacking FEMA."

"Incredibly inappropriate," Musk wrote in response to a news story citing these comments. "What I post on this platform has nothing to do with a 'coastal commission' in California! Filing suit against them on Monday for violating the First Amendment." Moments later he reposted that he would file a suit on Tuesday because of the federal holiday.

Media representatives at SpaceX could not be reached for further comment on Monday.

James Burling, vice president for legal affairs with the Pacific Justice Institute, said the commission would be able to cite a far longer paper trail than the brief comments by commissioners who went public with their dislike of Musk's political views.

"I have reviewed Gretchen Newsom's remarks at the CCC hearing, but I have not had a chance to review the complete discussion of the Space X application," Burling said in an email. "For that reason, I am unable to say whether the denial of Space X's request was based substantially on political disagreements between the commissioners and Elon Musk and a desire to punish Musk for his political views, or for reasons more within the purview of CCC's statutory authority."

"It seems to be there would be a reasonable if not a strong case that it was a pre-textual decision," said Bryan W. Wenter, a partner with Miller Starr Regalia in Walnut Creek.

Wenter commented, "Without having seen exactly what he's going to say," he would guess the complaint would make this argument or cite related First Amendment concepts, such as retaliation or viewpoint discrimination. These are "functional equivalents," he said, which could be used to show the decision was made with animus.

Another complicating factor is that SpaceX conducts both civilian and military flights from the base -- and the Coastal Commission has limited authority to regulate the latter. In August, the commission approved the Department of Defense's request to increase the annual number of flights from the base from six to 36. But it did so after noting SpaceX had ignored previous limits, and demanding the department agree to more monitoring of sound and effects on wildlife. The latest vote came in response to SpaceX's bid to increase the annual number to 50.

M.C. Sungaila, a partner with the Complex Appellate Litigation Group in Newport Beach, said much of the discussion at the hearing centered on the relationship between SpaceX and the Department of Defense and how this should affect the permitting process. She pointed to Commissioner Dayna Bochco's comment that "Space Force has failed to establish that SpaceX is a part of the federal government."

"This is the opposite of the criticism SpaceX faced when it provided Starlink internet access in Ukraine," Sungaila said. "Russia asserted that it was improperly interfering in the war, and that the U.S. as both the launching state and the home of SpaceX, should bear some responsibility under the Outer Space Treaty, which among other things calls for states to be responsible for the conduct of their private actors."

There is a recent Supreme Court precedent that hinged on public comments made by a regulatory voting body. In a split opinion in 2018, some justices noted the "hostility" some members of the Colorado Civil Rights Commission showed toward a Christian baker faced with a complaint over refusing to make a cake for a same-sex wedding. Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission, 2018 DJDAR 5291.

"In the Masterpiece case, the baker was being punished solely for the exercise of religious principles," Burling said. "If, instead, the baker was being punished for unsanitary conditions that would be another matter - unless the punishment could be proven to be a pretext and cover for antireligious bias. The same principles would apply here."