Tuesday, June 1, 2010

First Amendment speech doesn't always last forever

Public employees have the right to speak out on the job without fear of termination. In order to win the case, the plaintiff has to engage in protected speech, i.e., speech on a matter of public concern, like municipal corruption or malfeasance, and not matters of private concern, like the quality of the office air conditioning or dissatisfaction with office policies. But does protected speech lose its vitality over time?

The case is Nagle v. Fried, 07 Civ. 2860 (TSZ), an unpublished decision from the Southern District of New York, decided on March 17. Since the case is nowhere to be found in the databases, some factual background is in order.

Nagle was a public school teacher in the Mamaroneck school district. Before that, she worked at the Henrico school district in Virginia. In 2002/03, as an Henrico teacher, Nagle made reports to law enforcement authorities concerning a colleague suspected of physically and verbally abusing students (she heard that abuse coming from a nearby classroom). Since she supposedly did not follow protocol in blowing the whistle, Nagle received a written reprimand, and the incident received a lot of press coverage in Virginia.

Five years later, while up for tenure at Mamaroneck, Nagle had some disputes who district officials who were reviewing her candidacy. She circulated a memo critical of the school psychologist, Merling, who had given Nagle a negative review. Put off by this criticism, Merling Googled Nagle and found out about the whistleblowing in Virginia. By this point, the superintendent was already leaning against recommending tenure for Nagle, allegedly because of her difficult personality. Nagle sues, claiming she was denied tenure at Mamaroneck because of what the school psychologist learned from the Google search: that Nagle was a whistleblower at a Virginia school district, and therefore a troublemaker.

Two primary holdings here. First, Judge Zilly (a federal judge in Seattle who is handling some cases in SDNY) says that Nagle did not engage in protected First Amendment speech in Virginia because she did not follow protocol and was therefore disruptive. Mamaroneck was therefore allowed to take the Virginia speech into account in denying Nagle tenure.

The more remarkable holding is Judge Zilly's alternative reasons for dismissing this case. The issue is whether "public concern" speech retains its vitality five years after the plaintiff made it, such that a subsequent employer cannot take that speech into account in terminating her position. As Judge Zilly puts it, "the Court will address whether the geographic and temporal remoteness of plaintiff's reports of abuse remove them from the ambit of protected speech." The court notes concern over the "potential for abusive invocation of previous speech that, although uttered in an appropriate way, pertained to a matter now stale or of interest only in another locale."

So what's it going to be? Can Mamaroneck hold this five year-old whistleblowing against Nagle even if the speech touched upon a matter of public concern? Judge Zilly says yes, reasoning:

[T]he efficient provision of public services ... will not be served if government employees are insulated, in perpetuity and in ubiquitous fashion, from otherwise justified discipline or adverse action simply because they once engaged in protected speech. Instead, time and place must play a role in deciding what constitutes a 'matter of public concern.' Such analysis is consistent with jurisprudence regarding obscenity, another First Amendment doctrine, because the scope of public concern, like the standards of decency, might differ significantly from one community and/or era to another.

Judge Zilly cites Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002) for this proposition. Ashcroft summarizes the three-part test for determining whether speech is obscene and therefore not protected under the First Amendment. One of the elements of that test takes into account "contemporary community standards."

The Court goes on to reason that, while some whistleblowing might remain relevant over the course of several years and many miles away, this is not such a case.

Rather, here, by the time plaintiff's reports of abuse in Henrico were revealed by Dr. Merling's Google search, they were simply old news; the teacher involved had long since removed from the classroom and convicted, and the teacher's misconduct was an isolated incident, not part of a larger pattern or conspiracy. Moreover, although assaults by teachers against students is a topic of universal concern, the specific events about which plaintiff spoke were or more limited interest, primarily or perhaps solely to those in the Henrico community. The Court therefore holds that, due to temporal and geographic remoteness, plaintiff's expressive conduct in Henrico, to the extent it was protected speech when uttered, was no longer protected speech when defendants learned of plaintiff's reports and/or denied her tenure.

This is an interesting holding that I have not seen in the Second Circuit before, but if this case is appealed, the Circuit may not even address it. The holding that addresses the temporal life of Nagle's protected speech is an alternative holding, and Judge Zilly goes on to say that, under the Mt. Healthy doctrine, Mamaroneck would have denied Nagle tenure even had it not taken into account the Virginia whistleblowing. The individual defendants would also receive qualified immunity on the basis that they did not violate clearly-established rights of which a reasonable public official would have known.

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