Tuesday, August 25, 2009

Public Employment, Free Speech, and Public Concern - Employee Motivation Not Dispositive

No_free_speechIn an interesting First Amendment retaliation claim forwarded to me by friend of the blog, Bill Herbert, the Second Circuit revisited the question of whether the employee's motive is dispositive in determining whether speech is on a matter of public concern (for those of you who were getting ready for me to lash out on Garcetti grounds for old time's sake, the district court actually found the employee was speaking as a citizen and thus had potential First Amendment protections).

In Sousa v. Roque, No. 07-1892 (2nd Cir. Aug. 21, 2009), the Second Circuit concluded that the employee's motive in speaking out is NOT dispositive on whether he spoke on a matter of public concern (the so-called Connick test and the second step in the public employee free speech five-step).   The employee had been vocal about workplace violence issues and appeared to suffer various forms of retaliation for his pains. The court concluded:

Because our holding is at odds with the District Court’s conclusion that Sousa’s speech did not address a matter of public concern solely because he was motivated by employment grievances, we vacate the District Court’s order granting summary judgment to defendants on Sousa’s First Amendment claim . . . .

We note that this holding does not negate the fact that, as we stated in Lewis, “speech on a
purely private matter, such as an employee’s dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern.” Lewis, 165 F.3d at 164. An employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking “upon matters only of personal interest.” Connick, 461 U.S. at 147. We make clear today, however, that it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern . . . .

Whether or not speech addresses a matter of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record,” Connick, 461 U.S. at 147-48, and while motive surely may be one factor in making this determination, it is not, standing alone, dispositive or conclusive.

It won't surprise anyone that I find Judge Cabranes' opinion for the majority persuasive. This area of First Amendment law is riven with formalized distinctions between talking as an employee vs. talking as an citizen and between speaking on matters of purely private interest and on matters of public concern. It is great to see the Second Circuit take a more nuanced approach that recognizes that even public employee complaints motivated by an employee grievance may also still touch on matters of crucial public concern - like the potential for workplace violence.



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