Let’s change up the facts from yesterday’s “free speech” blog post.
Today’s plaintiff works for a public employer rather than a private one. She’s a lawyer running for political office. Instead of a racist Facebook post, the trouble brewed after she appeared on a public political podcast and stated that he boss played golf rather than work, did not hire racial minorities or support black social justice organizations, and had used illegal drugs while practicing law earlier in his career.
Based on these comments, her boss fired the plaintiff, an at-will employee, after the primary election, which the plaintiff lost to another office employee.
She later sued, claiming wrongful termination because the defendant violated her First Amendment rights.
Unlike employees who work in the private sector, a citizen does not surrender her First Amendment rights by accepting a position as a public employee. However, there are some guardrails. To prevail on a First Amendment claim of unlawful retaliation, a public sector employee must establish three elements:
- The speech was made as a citizen on a matter of public concern.
- The speech must have played a substantial part in the adverse employment action.
- The employee’s free speech interest must outweigh the employer’s interest in effectively fulfilling its responsibilities.
Here, the court recognized that the plaintiff’s speech was as a citizen on a publicly disseminated political podcast during campaign season. The parties agreed that the plaintiff’s speech resulted in her termination of employment. So, all that was left was the third element.
And that’s where the plaintiff’s case unraveled.
The Eleventh Circuit Court of Appeals underscored that the “First Amendment does not require a public employer to tolerate an embarrassing, vulgar, vituperative, ad hominem attack, simply because the employee recently has waved a political sign.” Plus, “proof of false statements knowingly or recklessly made by” a public employee can “furnish the basis for his dismissal from public employment.”
Here, the plaintiff conceded that her statements about her boss were false or baseless. The plaintiff testified during her deposition that she did not know what her boss did outside of work (i.e., she was unaware if he was playing golf as she claimed). She presented no evidence that her boss did “not want to hire people who look . . . like the people that are filling the boxes.”
Plus, the Eleventh Circuit noted that, as a lawyer, the plaintiff held a position of trust. She lost that trust by publicly criticizing management. Further, the record reflected that she was fired over concerns about office harmony, which goes to effectively and efficiently fulfilling the employer’s responsibilities.
Even in the public sector, the First Amendment may not offer much job protection.