Chris Kluwe's losing First Amendment lawsuit isn't the free speech fight we need

Former NFL player Chris Kluwe recently made a PR splash for those wanting to "fight back" against the Make America Great Again movement. He did so by filing a federal lawsuit against the Huntington Beach Union High School District, alleging HBUHSD fired him for his political speech. But as currently pled, his case is a losing one -- legally flawed and politically polarizing -- and Kluwe is not the First Amendment hero he claims to be.

Here's the situation: Kluwe began working in 2019 as an assistant coach for Edison High School's freshman football team. His role was at-will, not part of the district's classified or certificated staff, so he lacked job protections such as due process before discipline or dismissal. HBUHSD didn't need a reason to let Kluwe go, although it couldn't do so for illegal reasons.

Kluwe claims the district fired him for his speech at a February Huntington Beach city council meeting and a social media post that followed. At the city council meeting, he denounced MAGA as "explicitly a Nazi movement." After speaking from the public podium, Kluwe approached the seated, MAGA-aligned council members -- prompting his arrest by officers for disturbing an assembly.

Days later, Kluwe posted on social media: "Go f--- with the [MAGA-supporting] city council. Find where they work, and blow those places up." A police detective contacted him about the post's potential incitement to violence. Kluwe explained he meant online "review bombing," but the detective was not amused. Kluwe agreed to delete the post, and did. But he soon followed up with "clarifying" posts lamenting the need to explain himself because of "the Nazis" who had complained to police. Kluwe also referred to community members who objected to his original post (presumably MAGA supporters) as "Nazi f---s."

HBUHSD dismissed Kluwe within a week. He quickly claimed the district had retaliated against his anti-MAGA speech and pushed that narrative through social media and local press. The district issued a press release countering Kluwe's account, citing his original post (with expletives redacted) and stating it violated "the district's standards for professionalism and appropriate conduct."

Kluwe publicly hinted at a defamation lawsuit but did nothing further with the district before suing in federal court. That failure is the case's first fatal flaw.

Under the California Tort Claims Act (Government Code §§ 810-996.6), anyone seeking monetary damages from a public entity must first file a written claim within a limited time. "Timely claim presentation is not merely a procedural requirement, but is a condition precedent to the claimant's ability to maintain an action against the public entity." (J.J. v. County of San Diego, 223 Cal.App.4th 1214, 1218.) Kluwe's federal complaint doesn't show he did this. Time is running out to do so -- and without compliance, he's forfeiting state-law claims that may be his only viable path to relief.

Which brings us to the second fatal flaw: Kluwe's suit alleges only federal claims against HBUSUD under 42 U.S.C. § 1983, ignoring state law entirely.

That's a problem because California school districts enjoy sovereign immunity from federal civil rights suits under the 11th Amendment. This is a long-standing, recently reaffirmed rule. (K.J. v. Jackson, 127 F.4th 1239, 1251 n.8 (2025).) Kluwe's suit even acknowledges this in a footnote, urging the court to revisit immunity using the Ninth Circuit's new three-factor test from Kohn v. State Bar of California, 87 F.4th 1021 (2023). But courts have already analyzed these factors in some form in school districts' favor. (See, e.g., Hall v. City of Taft, 47 Cal.2d 177 (1956); Belanger v. Madera Unified School Dist., 963 F.2d 248 (1992).)

So what claims could Kluwe -- and others like him -- bring? Plenty, under state law.

California Labor Code sections 1101 and 1102, enacted in 1937, protect employees' political opinions and activity. Courts define "political activity" broadly to include "espousal of a cause" and action to promote it. (See Mallard v. Boring, 182 Cal.App.2d 390, 395 (1960).) Kluwe's anti-MAGA campaign could qualify. And courts have confirmed that social media posts can be protected under these code provisions. (See Napear v. Bonneville Int'l Corp., No. 2:21-cv-01956-DAD-DB (E.D. Cal. July 25, 2023).)

Labor Code section 432.7 offers another potential claim. It prohibits employers from using records of arrest or detention that did not lead to conviction when making decisions about hiring or firing. If HBUHSD considered Kluwe's city council arrest, it may have violated this statute.

These are only a few examples of state-law claims potentially available to Kluwe if properly pled and timely filed. Rather than pursuing a flawed federal case against an immune defendant, Kluwe should dismiss his suit and refile properly in state court.

Still, even if he does, Kluwe's case remains an uphill battle. Roughly half of the jury pool will be MAGA-aligned, with 47% of Orange County voting for Trump in 2024. Kluwe's constantly calling these persons "Nazis" and using expletives towards them is not endearing -- it's incendiary. It alienates jurors and reinforces HBUHSD's position: that it dismissed Kluwe for unprofessional and uncivil conduct, not political speech.

Kluwe's rhetoric isn't just impolitic, it's uncivil. Americans are tired of that. Polls show that nearly 80% worry that incivility in politics could lead to violence. That's a rare bipartisan consensus, and one that aligns more with HBUHSD's explanation than Kluwe's.

Supporting free speech is vital. But so is promoting civility. The cases worth championing are those that encourage both. Kluwe's simply isn't one of them.