Free speech never goes stale

The Court of Appeals has reinstated a First Amendment retaliation suit that alleges that a Westchester County School District retaliated against a teacher who blew the whistle on child abuse a few years earlier, when she was teaching in Virginia. The case includes several important rulings of interest to attorneys who handle public employee retaliation claims. This blog post focuses on the Second Circuit's rulings on whether Nagle engaged in protected speech. The next installment will cover the remaining issues, including causation.

The case is Nagle v. Marron, decided on December 12. When Nagle was teaching in Virginia, she reported to the appropriate authorities that a fellow teacher was abusive to the students. That made the newspapers in Virginia. When Nagle was teaching in Mamaroneck in 2007, her superiors Googled her and learned about the Virginia whistleblowing. After Nagle then complained in a separate incident in Mamaroneck that someone forged her name on a teachers' evaluation, Nagle was then denied tenure. The Court of Appeals (Calabresi, Raggi and Gleeson [D.J.]) rules as follows:

1. Nagle received a less than satisfactory performance review, which she refused to sign. But someone else signed her name! The school investigated the alleged forgery, and figured out who probably did it. Nagle claims this report of the forgery is protected under the First Amendment, and that this report led to her termination. The forgery report is not free speech, the Court of Appeals holds. These cases are not easy to win in the Second Circuit, which held in Weintraub v. Board of Education (2010) that speech is unprotected if it is "part and parcel" of the plaintiff's ability to do her job. This flows from the Supreme Court's holding in Garcetti v. Ceballos (2006) that the First Amendment does not protect speech that is made pursuant to your official job duties. The Judge who writes the Nagle decision dissented in the Weintraub ruling, arguing that the Court of Appeals was too-narrowly interpreting Garcetti. But Judge Calabresi does not have the opportunity to develop that dissent in Nagle. That's because "the forgery incident did not implicate a matter of public concern," a threshold issue in these cases. "No authority supports Nagle's argument that reporting an alleged crime always implicates matters of public concern. The forgery of Nagle's signature, even if such conduct were criminal, had no practical significance to the general public." If the public would not care about the speech, then it's not a matter of public concern under the First Amendment.

2. Nagle does prevail on her other speech claim, the one involving the reported child abuse in Virginia. The district court said this was not a matter of public concern because the speech was four or five years old. The trial court said that while that speech may have implicated a matter of public concern way back when in Virginia, it lost its vitality under the First Amendment by the time Mamaroneck school officials found about it, i.e., it was "old news." The Court of Appeals is flummoxed by this reasoning. It looks like the trial court mixed up the "public concern" analysis with the question of whether that speech led to plaintiff's termination. Here's the reasoning:

Whether speech pertained to a matter of public concern and whether it was uttered in the speaker’s capacity as a private person are not facts that change over time. A teacher’s expressive conduct made in the course of working for a candidate’s political campaign, for instance, would constitute protected speech even if the candidate lost and his candidacy therefore ceased being a matter of immediate public concern. And the speech would remain protected if the teacher moved to an area where the candidate had not been on the ballot. The First Amendment protects precisely such public participation, both at the time it occurs and ever after.

Although there is no case on point that says that free speech does not wane over time, that does not entitle defendants to qualified immunity. You don't need a case on point to show that the law is clearly established such that management was on notice that it was violating the First Amendment in a retaliation case. An official "who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful."

Finally, the trial court rejected Nagle's First Amendment claim relating to the child abuse because Nagle had violated protocol in reporting the abuse. Even assuming that Nagle did violated protocol in Virginia, that is no basis to reject her claim under the First Amendment. There is no binding authority for the proposition that the First Amendment only protects speech that the plaintiff utters in line with protocol. While the failure to comply with protocol may "give rise to an alternative, non-retaliatory ground for an adverse employment action" and therefore predicate a successful causation defense, that does not mean the speech is not protected under the Constitution.

In the end, Nagle will get a trial on her First Amendment claim from the alleged retaliation for her speech in Virginia. The remaining issues are the subject of tomorrow's blog post.