SACRAMENTO – In a case with important First Amendment implications, the ACLU Foundation of Northern California (ACLU Nor Cal) has joined the legal team defending the free speech rights of a Sacramento City Councilmember’s representative, Skyler Henry. City officials have sought restraining orders against Henry, alleging that his critical comments of government officials constitute threats to the safety of city staff.
ACLU NorCal alleges that the city’s actions violate free speech protections and are an example of the danger posed to individuals when government officials attempt to punish speech they do not like.
“In our view, it is not Mr. Henry who is a threat—it is the city of Sacramento,” said Chessie Thacher, Senior Staff Attorney at ACLU NorCal. “City officials are directly attacking Mr. Henry’s First Amendment rights, distorting a statement that he made criticizing city leadership into some sort of threat. If government is allowed to sideline and punish people whose opinions it doesn’t agree with, the First Amendment has no meaning.”
Henry, the co-host of a podcast focused on political issues, was hired in early June by Councilmember Katie Valenzuela to serve as her representative and help her with constituent services and communications. He had previously worked on matters of housing justice and police accountability around Sacramento.
ACLU NorCal and co-counsel, attorneys Mark E. Merin and Brian S. Crone, submitted documents to the Sacramento Superior Court on July 6 objecting to the city’s petition for the restraining orders and in support of an anti-SLAPP motion filed by co-counsel in June, arguing that the city’s legal action against Henry has no merit, was designed to harass and intimidate him, and must be struck down. (An anti-SLAPP motion is a legal procedure permitted by California’s Anti-Strategic Lawsuit Against Public Participation statute. It is a means of defending individuals against frivolous litigation that violates their right to speak out on issues of public significance.)
The city’s petition for the restraining orders cited comments that Henry had made on his podcast regarding U.S. Senator Krysten Sinema, criticizing what he considered to be the disrespectful way in which Sinema had employed a “thumbs down” gesture to vote against a proposed $15 minimum wage: “You should be terrified for the rest of your life. You should never be able to leave your house if that is how you’re going to govern…. And like, to me, the same thing sort of applies with the Mayor and the City Manager of this city [Sacramento]. It’s like, no, no, no, you don’t get to do that. You do not get to make the decisions that you have made over and over and over again to the detriment of everybody who lives here and then go home to your little [expletive] little McMansion in Natomas and like have a good night’s rest. I’m sorry, you don’t get to do that. You do not have a right to that. Absolutely not.”
The petition also cited a handful of political posts on social media that others had posted and which Henry had allegedly liked, in an attempt to justify why he should be considered a credible workplace threat.
The city filed a petition on June 16 requesting two types of restraining orders against Henry: a temporary restraining order (TRO) and a workplace violence restraining order. The petition was filed after the Sacramento City Council voted 8 to 1 in support. On June 17, a Sacramento Superior Court Judge denied the TRO, ruling that “the evidence presented does not meet the applicable legal standard and there are obvious First Amendment concerns. Moreover, some of the evidence provided by the City actually undercuts its own position that a temporary restraining order is warranted.”
The city’s petition attempts to connect Henry’s comments to Sacramento-area protests, citing news stories regarding two protests that occurred in front of Sacramento City Manager Howard Chan’s house: one in July 2020 protesting Chan’s decision not to fire the police officers who fatally shot the unarmed Stephon Clark, and another in March 2021 protesting police misconduct and Chan’s decision not to open a warming shelter on a night when a major storm killed several unhoused people.
“There is no evidence that Mr. Henry has ever been to Mr. Chan’s house, much less that he planned or participated in the protests there,” said attorney Mark E. Merin. “Mr. Henry’s comments were made after those protests had occurred and they focused on issues of public interest. He never called for violence. And regardless, none of this happened in the workplace environment, which is the touchstone for this kind of petition. This is an egregious example of thin-skinned city officials weaponizing their city legal department to persecute speech they don’t agree with. The right to speak critically of government officials forms the foundation of the First Amendment.”
“I strongly believe that government officials must be accountable to the people that they are meant to serve and represent. That is what my comments were addressing: the basic need for our government to act with integrity and accountability, and to honor peoples’ right to make those demands through lawful protest,” said Skyler Henry. “I am grateful to the ACLU for taking up this case. I respect my colleagues’ right to a safe work environment, but these restraining order petitions are a sham attempt to punish honest criticism of city leadership.”
The city’s petition argues that Henry is a “credible threat” to Chan and his family. They seek to ban Henry from coming within 100 yards of City Hall and Chan’s home or family for, potentially, the next three years. The anti-SLAPP motion, should it prevail in court, would invalidate the remaining workplace restraining order petition.
"This fight is bigger than Skyler," said Councilmember Valenzuela, who represents Sacramento's District 4. "The city's actions against him are part of a larger, troubling trend of the city harassing people whose opinions it doesn't like. The right to state one's opinions and speak truth to power is irrevocable to our democratic process. I swore to uphold those ideals when I took my oath of office. If this legal action against Skyler succeeds, it could be anyone whose political opinions the city disagrees with next."
The case, City of Sacramento v. Henry, is scheduled for public hearing in Sacramento Superior Court on July 12.
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