Times are tough for First Amendment plaintiffs these days

Norman Morey was the head custodian at a public high school when he discovered an asbestos problem in the gym. He repeatedly told the school district official responsible for asbestos abatement that the district was not doing enough to handle the problem. The district brought up Morey on disciplinary charges, and he was fired. If the charges are retaliatory, is the district violating Morey's First Amendment rights?

The case is Morey v. Somers Central School District, a summary order decided on February 9. I represented the plaintiff on appeal. Morey would have a case if his speech about the need for asbestos abatement was protected speech under the First Amendment. It isn't. Asbestos abatement certainly is important, but since Morey was head custodian, the speech was pursuant to his official job duties. As far as the law is concerned, Morey was just doing his job. He was not speaking as a concerned citizen.

In 2006, the Supreme Court in the Garcetti case ruled that speech made pursuant to the plaintiff's official duties is not speech on a matter of public concern, a necessary requirement for protected speech under the First Amendment. The Garcetti ruling changed things. Prior to Garcetti, at least in the Second Circuit, any speech touching on an important public matter was protected under the Constitution, even if that speech related to the plaintiff's job duties. Post-Garcetti, the Second Circuit scaled back its generous protections under the First Amendment in Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), a case in which Judge Calabresi dissented on the basis that his colleagues had too-broadly interpreted Garcetti to mean that a teacher's grievance was work-related and not speech on a matter of public concern.

Judge Calabresi was on the panel in Morey, along with Judges Lynch and Wesley. It was clear that Judge Calabresi doesn't like the direction things are taking post-Garcetti, but his dissent in Weintraub was ... a dissent, and not the majority. Morey loses the appeal.