Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)

Citation: Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)
Parent Document: Greg Moore v. Sean Garnand, 83 F.4th 743 (2023)
Jurisdiction: United States (federal)
Effective Date: 2023-09-29
Original Source: https://www.courtlistener.com/opinion/9429207/greg-moore-v-sean-garnand/ ↗

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Plaintiffs mainly rely on Wooley v. Maynard, 430 U.S.
705 (1977). In Wooley, the Court held that it was a First
Amendment violation to compel plaintiffs to display the
motto “Live Free or Die” on their license plates. Id. at 713.
In reaching its holding, the Court stated generally that “the
right of freedom of thought protected by the First
Amendment against state action includes both the right to
speak freely and the right to refrain from speaking at all.”
Id. at 714 (emphasis added). Plaintiffs contend that this
general statement clearly established Mr. Moore’s First
Amendment right to remain silent when questioned by
Defendants.
    But Plaintiffs’ position is at odds with the Supreme
Court’s command that clearly established law not be defined
at “a high level of generality.” Ballentine, 28 F.4th at 64
(quoting Wesby, 138 S. Ct. at 590). “[T]he right allegedly
violated must be established, ‘not as a broad general
proposition,’ but in a ‘particularized’ sense so that the
‘contours’ of the right are clear to a reasonable official.”
Reichle v. Howards, 566 U.S. 658, 665 (2012) (internal
quotation marks and citation omitted) (first quoting
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam);
and then quoting Anderson, 483 U.S. at 640). Wooley did
not deal with First Amendment rights during police
questioning. Nor did it suggest that its general statement
about a First Amendment right to refrain from speaking
could be extended to refusing to speak in response to police
questioning, with or without Miranda rights. Thus, Wooley
did not clearly establish a First Amendment right to remain
silent during police questioning.9 See Riley’s Am. Heritage

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