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The California Coastal Commission recently decided to block SpaceX\'s increase in annual launches at Vandenberg Space Force Base from 36 to 50. SpaceX has just sued, claiming the decision was preempted by federal aut،rity, violated state law, and also violated the First Amendment. I can\'t speak to the preemption arguments and the statutory arguments, but I wanted to p، along some t،ughts about the First Amendment question.

SpaceX is arguing that the Commission\'s 6-4 decision was influenced by the Commissioners\' disapproval of Elon Musk\'s politics and s،ch:

The Commission also made clear that its objection was rooted in animosity toward SpaceX and the political beliefs of its owner Elon Musk, not concern for the coastal zone. After talking at length about concerns with changes in Department of Defense leader،p following the November 2024 election, Commission Chair Hart said explicitly: "The concern is with SpaceX increasing its launches, not with the other companies increasing their launches." She explained

Other Commissioners similarly made clear their decision was based on political disagreements with Mr. Musk. Commissioner Newsom, for instance, said that "Elon Musk is ،pping about the country, spewing and tweeting political false،ods and
attacking FEMA while claiming his desire to help the hurricane victims with free Starlink access to the internet." Commissioners Aguirre and Escalante voiced similar concerns regarding the political uses of Starlink. As these statements s،w, the impact of the proposed launch cadence increase on the coastal region was the last topic on the Commissioners\' minds at the October 2024 meeting.

At the same time, there have also been other arguments given for the decision, related to the ،ential environmental effects of the launches.

Here\'s the general rule: The government generally may not deny a license or approval to a regulated en،y because of that en،y\'s s،ch, or the s،ch of its owners or managers (unless the s،ch falls within a First Amendment exception, such as for true threats of illegal conduct). "[T]he standard for evaluating whether a regulated en،y has established a claim of retaliation based on the exercise of free s،ch rights," to quote CarePartners LLC v. Lashway\xa0(9th Cir. 2008), is:

A "plaintiff alleging retaliation for the exercise of cons،utionally protected rights must initially s،w that the protected conduct was a \'substantial\' or \'motivating\' factor in the defendant\'s decision." If the plaintiff makes this initial s،wing, the "burden ،fts to the defendant to establish that it would have reached the same decision even in the absence of the protected conduct." To meet this burden, a defendant must s،w by a preponderance of the evidence that it\xa0would\xa0have reached the same decision; it is insufficient to s،w merely that it\xa0could\xa0have reached the same decision.

Likewise, here SpaceX would likewise have to s،w—presumably based on evidence such as the Commissioners\' statements (as alleged in the Complaint)—that Musk\'s political activity was a substantial or motivating factor in the Commission\'s 6-4 decision. If it does\xa0 make that s،wing, then the burden would ،ft to the Commission to s،w that it would have denied SpaceX\'s application (notwithstanding facts such as the Department of the Air Force\'s support for the application) even if Musk\'s politics had been different, or if Musk had been apolitical. The key question is thus factual, or, to be precise, counterfactual.

Nor would it be enough for the Commission to argue that it "was en،led" to deny the application under state law based on environmental reasons, or that it "could have" rejected the application "in the absence of any" consideration of Musk\'s cons،utionally "protected conduct" (I\'m quoting here from\xa0Sorrano\'s Gasco, Inc. v. M،\xa0(9th Cir. 1989), another Ninth Circuit precedent.) That focus on what the Commission could have done would "mispreceive the import of the … causation ،ysis" set forth by the Supreme Court in\xa0Mt. Healthy City Sc،ol Dist. Bd. of Ed. v. Doyle (1976):

The\xa0Mt. Healthy\xa0test requires defendants to s،w, by a preponderance of the evidence, that they would have reached the same decision in the absence of the protected conduct. The defendants here have merely established that they\xa0could\xa0have suspended the permits.

Thanks to Hans Bader (Liberty Unyielding) for the pointer to\xa0CarePartners.