Purged by Press Release: First Responders, Free Speech, and Public Employment Retaliation in the Digital Age
78 Pages Posted:
Date Written: April 9, 2019
As racial tensions rise in the United States, government employers, like their private-sector counterparts, have several legitimate interests in distancing themselves from an employee’s opinion, especially when an employee’s opinion is discriminatory. For example, employers have an interest in shielding other employees from hostile work environments and protecting themselves from liability for a hostile work environment.
Municipalities, in particular, have a compelling interest in regulating police officers’ speech. Repugnant police officer views, if published, could ostensibly interfere with a police department’s ability to effectively or efficiently deliver public safety services to the city. The law must balance the city’s compelling interests in public safety, however, with a police officer’s right to free speech. The rapidly evolving pace of technological advances that enable instantaneous social media communication, and create records of online speech, exacerbate the need for an accurate balance.
Traditionally, if a jurisdiction bases a law, rule, or policy that restricts speech on the basis of its content, a reviewing court will subject the rule to strict scrutiny. For the restriction to pass muster, the government entity must demonstrate both that it has a compelling interest in encroaching on the speaker’s freedom and that the rule is narrowly tailored to achieve the government’s purpose. This is a high bar that is difficult for government defendants to satisfy. A different set of rules apply, however, when a government body acts as an employer, rather than a sovereign. A gap exists in the prevailing standards of civil rights law that govern alleged public employment retaliations against culturally abhorrent or politically disfavored speech.
What happens when nobody may have known about a police officer’s controversial speech if the government had not published it, or republished it, on a scale and with tools sufficient to foment public outrage in a very short period of time? Current federal law provides no answer. Specifically, § 1983 jurisprudence, as currently conceived, does not account for potential First Amendment violations that result when a municipality publicizes or amplifies a police officer’s offensive speech that the public may never have known about but for the municipality publishing or amplifying it, and then fires the officer as a result of public outrage. Although § 1983 jurisprudence allows municipal employers to override First Amendment protections and fire subordinate employees for offensive speech in certain situations, the current framework does not address whether the Constitution permits this overriding when the employer, rather than the employee, publicizes the speech. This uncertainty risks chilling debate on salient topics and exposing public employees to the threat of wrongful infringements on their constitutional rights to free speech. The lack of predictability will continue to pose challenges as information markets continue to change and become more dynamic through technological progress. There is virtually no limiting principle in the current law that prevents municipal employers from violating their employees’ speech rights under the guise of mitigating a hostile work environment, preventing disruptions to public services, or any other number of justifications they might invoke to defend censorious social media policies when the employer amplifies the offending speech.
Against this backdrop, this Article proceeds by first recounting in Part I the tale of former Metropolitan Nashville and Davidson County (Metro) Police Officer Anthony Venable (Venable), whom the city fired in 2017 for comments he posted on Facebook, when he was off duty, about a fatal police shooting (Venable Case). Part II discusses § 1983 and sets forth free speech case law that governs public employment retaliation claims pursuant to the statute. Part III returns to the Venable Case and applies current law to demonstrate the failure of the prevailing retaliation framework to address government-manufactured public opinion crises. Next, Part IV sketches a new rule (Venable Rule) that courts should use in analogous cases. Simply put, taking into account the changing nature of the global information ecosystem and evolving speech paradigms in the digital age, and the primacy of protecting speech in American constitutional law, the Venable Rule first requires proof that controversial speech actually disrupted the efficient delivery of public services. Second, the Venable Rule requires that a terminated public employee has an opportunity to rebut a government employer’s evidence of an actual disruption with his or her own proof that the government’s republication of the speech, as opposed to the initial utterance, caused the disruption. This Part also provides practical and theoretical justifications for the Venable Rule, further demonstrating how it balances the weighty interests of the speaker, the public employer, and society at large, and better comports with due process of law than the status quo. Part IV additionally explores how the Venable Rule might apply outside the § 1983 context.
Keywords: free speech, Section 1983, Pickering, Myers, Garcetti, Anthony Venable, retaliation, First Amendment, Constitution, social media, Facebook
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