Enforcing First Amendment Rights

by Jeffrey Needle

Local, state and federal governments are all run by bureaucracies. These bureaucracies employ literally millions of officials, generating billions of documents and spending literally billions of tax payer dollars every day. The potential for waste, ineptitude and corruption is extremely high. Exposing that waste, ineptitude and corruption is one of the most compelling state interests.

It is the nature of public officials that they avoid accountability like the bubonic plague. They often cover up, rationalize and deny any misconduct or neglect which might diminish their stature, continued funding or chances for promotion. As a result, exposure of government misconduct and neglect is frequently dependent upon public employees of conscious who are willing to provide the necessary information to either the media or others in government.

The potential for retaliation against public employees willing to expose the truth is far more real than theoretical. It takes extraordinary courage for a public employee to expose corruption and waste by a government employer. For the strongest reasons of public policy, the law needs to encourage and protect these courageous public employees.

The First Amendment to the United States Constitution is said to be the cornerstone of American democracy. Within the context of employment, however, contemporary jurisprudence has made the enforcement of First Amendment rights extremely difficult. The ability of the government to restrict the free speech rights of a public employee is far greater than its ability to restrict the free speech rights of a private citizen. "[M]any of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees."(1) What speech qualifies for constitutional protection, the circumstances under which that speech will be protected and the defenses available to the government employer all differ substantially from the standards applicable to the enforcement of First Amendment rights outside of the employment context. While the obstacles to the enforcement to First Amendment rights are not insurmountable, enforcement has become so difficult that many federal circuits have said that "rarely, if ever" can they be enforced. Anticipating the dispositive issues is absolutely essential for the enforcement of one of the most basic of all constitutional rights.

In order to prove a First Amendment claim within the context of whistleblowing, an employee mustprove 1) that the speech is entitled to constitutional protection and 2) if protected, that the speech was a substantial or a motivating factor in the action taken. (2) In order to be constitutionally protected, speech must first be of "public concern." The claim must then survive a balancing of the employee's interest in exercising First Amendment rights against the interests of the government employer in maintaining a workplace free from disruption. (3) Both the public concern and the balancing issue are questions of law. (4) A government employer may still avoid liability where it proves that it would have taken the same disciplinary action even without the protected activity. (5)

In order to be protected, the content of a Whistleblower's speech need not be true. Although some circuits have held that even statements made with reckless disregard for the truth are entitled to protection, such statements are entitled to very little protection. (6) A public employee should be prepared to prove that allegations were at least made in good faith, even if they turned out to be false.

The First Amendment prohibits virtually any disciplinary behavior substantially motivated by speech on issues of public concern. Not only are economic benefits protected, but also intangible benefits such as job location and assignment. (7) An additional benefit of the First Amendment protection is that it can be enforced by independent contractors utilizing the same standards as for government employees. (8)

Public Concern

The issue of "public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." (9) If employee expression relates to an issue of "political, social, or other concern to the community," it may fairly be said to be of public concern. (10)To deserve First Amendment protection, it is sufficient that the speech concern matters in which even a relatively small segment of the general public might be interested. For this reason, public employee speech reported by the press almost by definition involves matters of public concern. (11)

For First Amendment purposes, the central question is whether or not the point of the speech is to bring wrongdoing to light, and not merely to criticize internal office affairs.(12) Statements regarding criminal misuse of public funds, wastefulness, and inefficiency in managing and operating government entities are matters of inherent public concern. (13)

Speech focused solely on internal policy and personnel grievances does not implicate the First Amendment. (14) A speaker's "personal stake" in a controversy, however, does not per se prevent speech from involving a matter of public concern.(15) The fact that speech is not directed toward the public at large is not critical to the inquiry of whether the speech is protected. (16)

To best protect their interests, complaints or protests must be expressed in the broadest social context and must minimize the official's own personal stake in the outcome. Complaints about personnel evaluations, work assignments or pay issues are generally not entitled to protection.(17So called "nitpickers" have little appeal to either a judge or jury.

Balancing of interests

If the speech does involve public concern, the court must balance the free speech interest of the citizen against the "interests of the state, as an employer, in promoting the efficiency of the public services it performs through it employees."(18) The employer bears the burden of proving that the balance of interest weighs in its favor. (19)

Some office disruption always accompanies whistleblowing by its very nature. The greater the protection afforded the whistleblower's speech, the greater the showing of disruption is required to justify disciplinary action.(20)In order for the state's interest to prevail against First Amendment rights, the disruption in the work place must be "actual, material and substantial." "[I]t would be absurd to hold that the First amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office." (21)

The issue of work place disruption arises in virtually every First Amendment claim. Moreover, public employers need not allege that an employee's expression actually disrupted the workplace; "reasonable predictions of disruption" are sufficient. (22) Balancing workplace disruption entails a factual inquiry into such matters as whether the speech (i) impairs discipline or control by superiors, (ii) disrupts co-worker relations, (iii) erodes a close working relationship premised on personal loyalty and confidentiality, (iv) interferes with the speaker's performance of her or his duties, or (v) obstructs the routine operation of the office. The manner, time, and place in which the speech occurred also constitute relevant considerations. (23)

As to each factual inquiry described above, several additional factual questions may arise. For example, whether and to what extent the employees speech interfered with the performance of duties is generally contested. More than minimal interference is required, and some jurisdictions have held that the speech must have interfered with job performance to such an extent that it rendered the employee ineffectual in his job.

The degree of First Amendment protection afforded public employees is inversely proportional to their policy making authority and the need for political loyalty. (24) "High-level officials must be permitted to accomplish their organizational objectives through key deputies who are loyal, cooperative, willing to carry out their superiors' policies, and perceived by the public as sharing their superiors' aims." (25) The State's interest in avoiding disruption is enhanced when the employee asserting his right to speak serves in a "confidential, policymaking, or public contact role."(26) When close working relationships are essential to fulfilling public responsibilities, "a wide degree of deference to the employer's judgment is appropriate,"(27) If, however, the "employee serves no confidential, policymaking, or public contact role, the danger to the agency's successful functioning from that employee's private speech is minimal." (28)

Qualified Immunity

Surviving qualified immunity is by far the greatest challenge to enforcing First Amendment rights. In particular, the balancing of First Amendment rights against the potential for workplace disruption provides public officials with an opportunity to argue that they could not have known how a court would ultimately balance the competing values. Because this test "requires particularized balancing on the unique facts presented in each case," some federal courts to conclude that "rarely, if ever" will First Amendment claims survive summary judgment.(29)

Reduced to its most basic terms, qualified immunity shields officials from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (30) Once pled by the defendant, it is the plaintiff's burden to show that the constitutional right was clearly established at the time of the alleged violation. (31) To defeat qualified immunity, an employee must establish that the contours of the right violated are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." (32) The specific action in question need not previously have been held unlawful, but the unlawfulness must be apparent in light of preexisting law. (33)

The inquiry into whether or not a claimed right was "clearly established" must focus upon the right not in a general, abstract sense, but rather in a practical, particularized sense. (34) Within this context, the legal right at issue is not the generic right to free speech. Nor is it the right to be free from expression-based retaliatory discipline or discharge. Rather, whether or not a public employee enjoyed a clearly established right to speak depends upon the balancing of the particular substance of the expression against the particular effect of that expression in maintaining a work place free from disruption. The issue the court must decide is whether the outcome of the Pickering balancing test so clearly favored the employee that it would have been patently unreasonable for the government employer to conclude that the First Amendment did not protect his speech. (35)

In Moran v. State of Washington, the Court considered whether the Washington State Insurance Commissioner, Deborah Senn, violated the First Amendment rights of the Deputy Commissioner because of the Commissioner's outspoken opposition to an outreach program. The Deputy Commissioner believed that the outreach program constituted "unlawful political activity" intended for the Commissioner's political gain, and, for that reason, she continually resisted and refused to engage in outreach activity. The Deputy continued to object to the expansion of the outreach activity and openly discussed her concerns over "productivity and ethical issues" surrounding the outreach program with her co-workers, most of whom adamantly opposed the expansion of outreach activity. The Commissioner dismissed the Deputy, citing a "clear difference in management philosophy" as the reason for her termination. The Deputy Commissioner sued, alleging a First Amendment violation.(36)

In order to decide the issue, the Court acknowledged the need for a particularized balancing of the interests of the employee in commenting on issues of public concern against the interests of the state in promoting efficient public service. (37) As applied to qualified immunity, the Court held that because the constitutional determination turns on a balancing of interests, "the law regarding such claims will rarely, if ever, be sufficiently 'clearly established' to preclude qualified immunity under Harlow and its progeny." (38)

All is not as hopeless as it sometimes seems. The best way to avoid summary judgment on the issue of qualified immunity is to establish disputed issues of fact concerning the extent and degree of disruption. The mere incantation of the phrase "internal harmony in the workplace" is not enough to protect public officials who retaliate because of expressive conduct on issues of public concern.(39) To establish a defense, the defendant must establish workplace disruption with more than mere conclusory statements. In addition, the disruption must be caused by the employees's speech. Defendants cannot rely on disruption which they instigated or exacerbated to outweigh an employee's First Amendment rights. (40) Where there is "no question of maintaining either discipline by immediate superiors or harmony among coworkers," qualified immunity is inapplicable. (41) The creation of an issue of fact concerning the level and cause of disruption is a high priority in order to survive summary judgment on First Amendment claims. (42)

In addition, where a jury finds that the articulated reasons for termination were a pretext or unworthy of belief there are no factors weighing in the employer's favor, and thus the right at issue is clearly established. In Nunez v. Davis, a former court administrator was instructed by a municipal court judge to limit attendees at training seminars to those court employees who had worked in his reelection campaign. In protest, the administrator arranged for two court clerks who did not work in Judge's reelection campaign to attend a training seminar. The judge fired the administrator. (43)

After surviving summary judgment, the jury found the judges testimony of office disruption was not credible, and his other justifications for termination pretextual. The Ninth Circuit concluded that as a result "there were no factors weighing in [the judge's] favor, and thus [the] right at issue was clearly established." (44)

Where the jury finds that the employee was fired for his speech and not for the other reasons offered, the employer could not have reasonably believed that dismissal was proper, and qualified immunity is denied. (45) If the employee can create a question of fact concerning the issue of pretext, that should be sufficient to defeat qualified immunity at the summary judgment stage.

Conclusion

It is the essence of the First Amendment that it protects from government retaliation those who expose government waste, ineptitude and corruption. The legal barriers to the vindication of First Amendment rights are formidable, and seem to reflect values which discount the public interest in protecting whistleblowing public employees. But jurors readily understand the importance of exposing governmental misconduct, and are grateful and sometimes generous to public employees who are willing to risk their livelihood in the name of protecting the public interest. Jurors tend to have little sympathy with government officials who retaliate in an effort to avoid accountability for their own misconduct or neglect. The public interest in aggressive enforcement of First Amendment rights can hardly be overstated.

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Jeffrey Needle is a Seattle trial lawyer.

1. Waters v. Churchill, 511 U.S. 661, 672 (1994)

2. Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Pickering v. Bd. of Education, 391 U.S. 563, 569-572 (1968); Waters v. Churchill, --- U.S. ----, ----, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994).

3. Mt. Healthy Bed. of Ed. v. Doyle, 429 U.S. 294, 284; Pickering, 391 U.S. at 568.

4. Roth v. Veteran's Administration, 856 F.2d 1401, 1407 (9th Cir. 1988).

5. Mt. Healthy, supra at 287; Allen v. Scribner, 812 F.2d 426, 435 (9th Cir. 1987).

6. Johnson v. Multnomah County, Or., 48 F.3d 420, 426 (9th Cir. 1995);Chappel v. Montgomery County Fire Protection District No. 1, 131 F.3d 564, 576 (6th Cir. 1997).

7. Allen v. Scribner, 812 F.2d 426, 434-35 (9th Cir.1987) (transfer to less desirable job assignment)

8. Board of County Commissioners v. Umberhr, 116 S.Ct. 2342 (1996).

9. Connick v. Myers, 461 U.S. 138, 147-48 (1983).

10. Id. at 146, 103 S.Ct. 1684.

11. Roe v. City and County of San Francisco, 109 F.3d 578, 585 (9th Cir. 1997)

12. Connick, supra at 148.

13. Chatearbriand v. Gaspard, 97 F.3d 1218, 1211-23 (9th Cir. 1996)

14. Hyland v. Wonder, 972 F.2d 1129, 1137 (9th Cir.1992), cert. denied, 113 S.Ct. 2337 (1993).

15. Roth v. Veteran's Administration, 856 F.2d at 1406.

16. Rankin v. McPherson, 483 U.S. 378, 386 n. 11 (1987).

17. Connick, 461 U.S. at 149, 103 S.Ct. 1684.
 

18. Pickering v. Bd. of Education, 391 U.S. at 568; Roth v. Veteran's Administration, 856 F.2d 1401, 1407 (9th Cir. 1988); Gillette v. Delmore, supra.

19. Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2616, 132 L.Ed.2d 858 (1995)[add cite].

20. Id.; Connick, 103 S.Ct. at 1691-1692.

21. Roth v. Veteran's Administration, 856 F.2d 1401, 1407 (9th Cir. 1989)

22. Waters, 511 U.S. at 673, 114 S.Ct. 1878.

23. Rankin v. McPerson, 483 U.S. 378, 388, 107 S.Ct. at 2899; Connick, 461 U.S. at 151-52, 103 S.Ct. at 1692-93.

24. Rankin v. McPherson, supra.

25. Hall v. Ford, 856 F.2d 255, 263 (D.C.Cir.1988); Weisbuch v. County of Los Angeles, 119 F.3d 778, 784 (9th Cir.1997).

26. Rankin, 483 U.S. at 390-91.

27. Connick, 461 U.S. at 151-52.

28. Rankin, at 390-391.

29. Moran v. State of Washington, 147 F.3d 839,849 (9th Cir. 1997); Kincade v. City of Blue Springs, 64 F.3d 389, 398 (8th Cir.1995); McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998)("only infrequently will it be 'clearly established that a public employees' speech on a matter of public concern is constitutionally protected"); Grantham v. Trickey, 21 F.3d 289, 292 (8th Cir. 1994); Martin v. Baugh, 141 F.3d 1417, 1420 (11th Cir. 1998)("a defendant in a First Asmendment suit will only rarely be on notice that his actions are unlawful")

30. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2738 (1982).

31. Davis v. Scherer, 104 S.Ct. 3012, 3021 (1984).

32. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

33. Id.

34. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

35. Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 980 (9th Cir. 1998)

36. Moran v. State of Washington, 847 F.3d 849, 842 (9th Cir. 1996)

37. Id. at 845.

38. Id.

39. Hulbert v. Wilhelm, 120 F.3d 648, 655 (7th Cir. 1997)

40. Roth v. Veteran's Administration, supra at 1408; Burnham v. Ianni, 119 F.3d 668, 680 (8th Cir. 1997)

41. Pickering v. Bd. of Education, 391 U.S. 563, 574 (1968); Chateauabriand v. Gaspard, 97 F.3d 1218, 1224 (9th Cir. 1996).

42. Roth v. Veteran's Admin. of the United States, supra at 1408 (9th Cir.1988)("The magnitude of office disruption caused by Roth's criticisms and the extent of the defendants' role in causing the disruption are disputed factual issues which required the district court to deny defendants' motion for summary judgment.").

43. Nunez v. Davis, 1999 WL 129509 at *1, (9th Cir. 1999)

44. Nunez v. Davis, 1999 WL 129509 at *5, (9th Cir. 1999)

45. Id.