Public official or private citizen? In freedom of expression cases, courts must decide

Claims of First Amendment retaliation may become increasingly difficult for government employees to prosecute, as courts appear increasingly likely to view speaking out as part of employees’ role as public servants rather than ‘as private citizens.

The United States Court of Appeals for the Ninth Circuit recently upheld a ruling that a Washington state high school football coach did not have the First Amendment right to kneel and pray on the 50-meter line immediately after football matches in full view of parents and students. In Kennedy v. Bremerton School District, the coach sued for First Amendment retaliation when, based on his refusal to stop public prayer, he was put on administrative leave. The main point of contention was whether the coach was expressing his religious devotion as a private citizen or as a public employee.

The court ruled that the coach spoke as a public employee because:

  • the prayer was undertaken “immediately after the games in view of the pupils and parents”, as opposed to “silently and alone”;

  • the speech was addressed, at least in part, to students and spectators; and

  • the job description of the coach required him to “be a coach, mentor and role model [and to] demonstrate sporty driving at all times.

The court ruled that the role of the coach is akin to that of a teacher, who is “responsible for communicating the district’s point of view on appropriate behavior through the example set by his own conduct.” Because he spoke as a public employee, his speech was not constitutionally protected.

The Ninth Circuit is not alone in its interpretation of free speech for public employees. In June, the United States Court of Appeals for the Third Circuit ruled that a former public defender could not pursue a First Amendment retaliatory action against the director of his office based on statements he had. made in court that he was “punished” for taking too many cases to try. In De Ritis v. Mcgarrigle, the court looked at three different places where it made the statements: to judges and lawyers during the trial, to lawyers outside the courthouse, and to county officials.

The tribunal based its decision on three main conclusions:

  • The complainant’s statements were made in court in a public capacity because his close access to judges and other lawyers was a result of his position. Therefore, “idle chatter [with attorneys and judges] until the court begins or ends ”was part of its official capacity and was not protected by the First Amendment.

  • Although the attorney may not have acted in an official capacity by speaking to attorneys outside the courthouse, his speech did not address matters of public interest and, for this reason, also fell. outside the limits of First Amendment protection.

  • Finally, the attorney made the statements to county officials as a private citizen, and they discussed matters of public interest. Nonetheless, the court ruled that these comments were not entitled to First Amendment protection because “whatever the value of the First Amendment [the] statements had, [they] given [the director] sufficient justification to treat him differently from a member of the public ”and entitled the Director to qualified immunity for his decision to terminate the plaintiff.

These rulings may signal the decreasing willingness of courts to award remedies to public employees for potential First Amendment violations. Public servants still have avenues for retaliation. But in order to be protected, they must speak as individuals, their speech must relate to a matter of public interest, and the employer must lack adequate justification to treat the public employee differently from a private citizen.

Copyright © by Ballard Spahr LLPRevue nationale de droit, volume VII, number 248

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