9th Cir. Model Jury Instr. (Civil) 9.11

As previously explained, the plaintiff [name] has the burden of proving that the act[s] of the defendant [name] deprived the plaintiff [name] of particular rights under the United States Constitution. In this case, the plaintiff [name] alleges the defendant [name] deprived the plaintiff [name] of rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].

Under the First Amendment, a citizen has the right [to free expression] [to petition the government] [to access the courts] [other applicable right]. To establish the defendant [name] deprived the plaintiff [name] of this First Amendment right, the plaintiff [name] must prove the following additional elements by a preponderance of the evidence:

First, the plaintiff [name] was engaged in a constitutionally protected activity;

Second, the defendant [name]’s actions against the plaintiff [name] would chill a person of ordinary firmness from continuing to engage in the protected activity; and

Third, the plaintiff [name]’s protected activity was a substantial or motivating factor in the defendant [name]’s conduct.

[I instruct you that the plaintiff [name]’s [speech in this case about [specify]] [specify conduct] was protected under the First Amendment and, therefore, the first element requires no proof.]

A substantial or motivating factor is a significant factor, though not necessarily the only factor.

If the plaintiff [name] establishes each of the foregoing elements, the burden shifts to the

defendant [name] to prove by a preponderance of the evidence that the defendant [name] would have taken the action(s) in question, even in the absence of any motive to retaliate against the plaintiff [name]. If you find that the defendant [name] is able to demonstrate this, you must find for the defendant [name]. If you find that the defendant [name] is not able to demonstrate this, you must find for the plaintiff [name].