Chapter 7 Workplace Speech & Association Protections

The Grid Public Workplace Private Workplace Work-Related Outside Expression

The Public Workplace Connick v. Myers  π Myers an assistant prosecutor  Connick the DA  π transferred unwillingly  π circulated “questionnaire” re office policies  Δ terminated her  π sued, claiming the termination violated her 1 st amendment speech rights

Connick (cont.)  Government employees do not automatically relinquish 1 st amendment rights  Pickering/Connick balancing test:  Is the speech a matter of “public concern”?  Yes: protected but not absolutely  No: not protected  Δ reasonably concluded that π’s actions would disrupt the office and undermine DA’s authority and close working relationships

Pickering/Connick Balancing High DisruptionLow Disruption High Interest Low Interest

Connick Notes  What is a matter of “public concern”?  Do courts actually “balance”?  Or do employer’s interests usually trump?  Plausible showing of operational efficiency  Burdens:  π has burden of demonstrating that her speech implicates matters of public concern  π must demonstrate causation -- employer acted because of the employee’s speech  Δ then must demonstrate its actions furthered operational efficiency

Garcetti v. Ceballos  Deputy DA Ceballos investigated and concluded in a memo that an affidavit used to obtain a search warrant was inaccurate  He also testified for the defense, but the court rejected the challenge to the warrant  Ceballos claimed he was subjected to retaliatory employment actions for the memo

Garcetti (cont.)  π’s expressions pursuant to his “calendar deputy” duties  Statements pursuant to official duties not those of “citizens” for 1 st amendment purposes  Constitution does not protect them Connick  Taking Connick to its logical conclusion?  if you can’t discipline for official duties, efficiency suffers?  Dissent: “public concern” speech pursuant to official duties should be subject to balancing test

Garcetti Notes  Compare/contrast Connick  Do Garcetti majority and dissent differ only in the deference accorded the employer?  Garcetti’s implications  Whistleblowers  Academic freedom  Freedom of association claims  Do lower level employees now enjoy greater protection than higher level workers?  NTEU  NTEU: still good law?

City of San Diego v. Roe San Diego terminated Roe, a police officer, for selling sexually explicit videotapes and related internet activity Roe sued under §1983 for violation of his 1 st amendment free speech rights

Roe (cont.) π’s actions not protected: π’s speech related to work –Even though outside the workplace Police uniform implicated the SDPD –π’s speech not “public concern” not subject to Pickering/Connick

Roe Notes Relation between expression workplace? –Yes: Pickering/Connick analysis –No: NTEU applicable Is “private” speech by public employees protected even if not of public concern? –What if Roe’s videos didn’t feature his police status? If protected at all, what scrutiny should apply in employer regulation of off-site expression? Nonconstitutional protections –Civil service codes –Collective bargaining agreements

Problem 7-1 Employee speech rights v. Antidiscrimination and harassment law

The Private Workplace State statutes

Novosel v. National Ins. Novosel employed by Nationwide for 15 years π claimed he was terminated for refusing to lobby for No-Fault Reform Δ’s power to hire/fire cannot dictate an employee’s political activities “while no PA law directly addresses the public policy question at bar, the protection of an employee’s freedom of political expression would appear to involve no less compelling a societal interest than the fulfillment of jury service or the filing of a worker’s compensation claim”

Novosel Notes Edmunson dismisses Novosel –The vast majority of courts in other jurisdictions have refused to recognize speech or association-based claims under the public policy doctrine Might employer-coerced political activity be better addressed by the legislature? Cf. Novosel and Borse/Rulon-Miller The proposed Restatement Academic Freedom

Problem 7-2 Suppose SDHS is an academic department in a private university

Problem 7-3 Claim based on a termination resulting from political activity away from work