Archive for October 2019
Know Your Constitution (9): What Are the Free Speech Rights of Public Employees?
This is the ninth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon. These posts are not intended to provide legal advice and should not be used for that purpose.
(Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process, as well as state action).
What are the free speech rights of public employees with regard to public employer discipline or punishment?
Notice that I refer to public employees: the First Amendment does not apply to private employees with regard to private employer discipline or punishment.
Notice also that this discussion is about public employer discipline or punishment for speech, and does not concern the free speech rights of public employees as against the government generally. So we’re not talking here about criminal punishment for the public employee’s speech.
With these important qualifications, the short answer to the question is that the First Amendment protects the free speech of public employees with regard to public employer discipline or punishment only under the following circumstances (I call it a three-step dance):
(1) where the public employee speaks as a citizen, and not pursuant to her employment duties and obligations (Garcetti v. Ceballos, 547 U.S. 410 (2006)) and
(2) where the speech of the public employee is on a matter of public, not private, concern (Pickering v. Bd. of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 1983)) and
(3) where the free speech interests of the public employee and society outweigh the public employer’s interests as an employer.
Let me explain these three requirements in a non-technical manner.
(1) If a public employee’s job obligations, for example, require her to report criminal or other misconduct by higher-up officials in her department, and the public employee does so and becomes a whistleblower, the public employee is not necessarily protected by the First Amendment from public employer discipline. This result may seem shocking, and it is to many, because it discourages whistleblowing. But this is current First Amendment law under Garcetti. However, keep in mind that state or local law may provide a separate remedy for such whistleblowers.
(2) But even where the public employee’s speech is not part of that employee’s job obligations, she is not yet over the First Amendment hurdle: the speech must also be on a matter of public, not private concern. For example, if the public employee’s speech primarily concerns an employment related grievance specific to her, such as salary or working conditions, then this would be speech on an issue of private concern, and the First Amendment would not be applicable to the public employer’s discipline for this speech.
(3) Finally, if the public employee has made it this far, then her First Amendment claim becomes subject to a balancing test, under which the court weighs the First Amendment interests of the public employee and society against the interests of the public employer in, say, discipline, morale, work relationships and the like. Most public employees in this situation typically prevail on the First Amendment merits. Still, it takes a lot for public employees to get to the final step of this three-step dance.
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A Section 1983 Primer (13): Qualified Immunity
The Background
I have posted previously about absolute immunity, including legislative and judicial immunity. As discussed in those posts, absolute immunity from section 1983 damages liability is intended to protect certain persons who engage in allegedly unconstitutional legislative, judicial and prosecutorial conduct from not only liability but from the very costs of defending.
(see https://nahmodlaw.com/2012/10/25/a-section-1983-primer-7-introduction-to-absolute-individual-immunity/; https://nahmodlaw.com/2013/02/20/a-section-1983-primer-8-absolute-legislative-immunity/; https://nahmodlaw.com/2013/03/14/a-section-1983-primer-9-absolute-judicial-immunity/)
In contrast, qualified immunity from section 1983 damages liability (which covers state and local government officials who are not protected by absolute immunity) is intended primarily to protect these officials from liability itself. However, over the years the Supreme Court has increasingly broadened the scope of qualified immunity so that it often functions like absolute immunity to protect state and local government officials even from the costs of defending.
The Basics
Qualified immunity is an affirmative defense and so it must be raised by the defense. It becomes relevant when state or local government officials are sued in their individual capacities for damages. It once had both a subjective component–actual knowledge– and an objective component–the duty to know clearly settled law. See Wood v. Strickland, 420 U.S. 308 (1975). However, in a game-changing decision, the Supreme Court eliminated the subjective part, with the result that qualified immunity is now objective in nature. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
In Harlow and other cases, the Court has emphasized that the qualified immunity determination is for the district court and should be made as quickly as possible, even before discovery. This change was intended by the Court, as a matter of policy, to protect government officials from “insubstantial” claims and thereby minimize the costs of defending.
The qualified immunity inquiry is as follows: as of the time of the challenged conduct, and under the circumstances facing the defendant, would a reasonable official have believed that he or she was violating clearly settled law.
This inquiry is, as noted, made as of the time of the challenged conduct (and is therefore backward-looking), while the constitutional merits of the section 1983 claim itself are decided under current constitutional standards. The Court has since emphasized that the clearly settled law inquiry should be made at a fairly fact-specific level because “fair notice” is what is required. Anderson v. Creighton, 107 S. Ct. 3034 (1987).
However, a case on all fours is not required for a finding of a violation of clearly settled law. Some conduct can be so obviously unconstitutional when it occurred that even without a comparable precedent, the government official violated clearly settled law. Hope v. Pelzer, 122 S. Ct. 2508 (2002). On the other hand, in the past decade and a half, the Court, particularly in law enforcement cases, has taken a much more pro-defendant position on qualified immunity, instructing courts not to make the clearly settled law inquiry at too general a level. For example, see: https://nahmodlaw.com/2019/03/04/city-of-escondido-v-emmons-another-scotus-summary-reversal-in-a-qualified-immunity-excessive-force-case/.
Whose decisions constitute clearly settled law? At the top of the list is a relevant Supreme Court decision. Next is a relevant decision of the particular circuit court of appeals (district court decisions are not clearly settled law although they may be evidence of it). Next is a strong consensus in the circuits. And although I have never seen this, it is even possible that a state Supreme Court decision on the relevant federal constitutional issue could constitute clearly settled law as well.
The qualified immunity inquiry is primarily for the trial judge. The jury should not be instructed about qualified immunity, although the jury’s findings of fact may be relevant to the qualified immunity outcome. Hunter v. Bryant, 112 S. Ct. 534 (1992). And while it is better for the development of constitutional law that the trial judge decide the constitutional merits before deciding qualified immunity, that is not mandatory. Pearson v. Callahan, 129 S. Ct. 534 (1992).
Finally, district court denials of qualified immunity based on the clearly settled law determination (and not on factual disputes) may be appealed immediately by government officials to the circuit court of appeals. See Mitchell v. Forsyth, 105 S. Ct. 2806 (1985) and Johnson v. Jones, 115 S. Ct. 2151 (1995).
On qualified immunity generally, see ch. 8 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West & Westlaw). You might also want to search “qualified immunity” on this blog for additional discussions of qualified immunity decisions.
I invite you to follow me on Twitter @NahmodLaw.
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