Monday, January 29, 2018

employment - govt. employment - free speech - First Amendment

Bradley v. West Chester University – 3d Cir. – January 26, 2018

Speech by government employees is constitutionally protected when the employee is speaking “as a citizen, not as an employee,” and when the speech “involve[s] a matter of public concern.”30 If these two prerequisites are not met, a public employee “has no First Amendment cause of action based on his or her employer’s reaction to the speech.”31

In Garcetti v. Ceballos, the United States Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,” and that, therefore, “the Constitution does not insulate their communications from employer discipline.”32

On the other hand, in Dougherty v. School District of Philadelphia, we held that a school district employee was not speaking pursuant to his official duties—and was instead speaking as a citizen—when he disclosed alleged misconduct by the school superintendent to a local newspaper.40 And in Flora v. County of Luzerne, we held that a public defender sufficiently alleged that he was speaking as a citizen when he initiated a class action lawsuit on behalf of indigent criminal defendants and reported his county’s noncompliance with a Pennsylvania Supreme Court order to the Special Master whose report had given rise to that order.41


30 Dougherty, 772 F.3d at 987. Here, the parties do not dispute that Ms. Bradley’s speech involved a matter of public concern.

31 Garcetti, 547 U.S. at 418.

32 Id. at 421; see also id. at 421-22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”).

40 Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 983, 988 (3d Cir. 2014).

41 Flora v. Cty. of Luzerne, 776 F.3d 169, 173, 179-80 (3d Cir. 2015).

Query -- What about the state constitution?