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
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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).
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Query -- What about the state constitution?
