Court clerk has speech claim against Town Justice

This is an important First Amendment retaliation case brought by a public official against her municipal employer. The Court of Appeals holds that a former small-town court clerk may sue the Town and the Town Justice for retaliation after she cooperated with state investigators into possible misconduct at the Town Court. This is a rare victory for plaintiffs like this, as the Supreme Court has curtailed these lawsuits in holding that speech that falls within the scope of the plaintiff's official job duties is not protected by the First Amendment and therefore may legitimately motivate retaliation by a thin-skinned supervisor.

The case is Long v. Byrne, issued on July 30. Long worked as a court clerk for the Town of New Lebanon, and Byrne was the Town Justice. When the State Commission on Judicial Conduct asked for certain records in the course of an ethics investigation into the Town Court, Long, who had previously earned stellar performance reviews, turned over the records in an effort to comply with the laws, rules and regulations of the Commission, much the consternation of Justice Byrne. Long was eventually fired after she refused to answer Byrne's questions about her interactions with the Commission. Not for nothing, but Justice Byrne eventually resigned from the Town Court due to a Commission investigation; it is unclear if that resignation resulted from the investigation that gave rise to this case.

The district court dismissed the case on authority of Garcetti v. Ceballos, a 2006 Supreme Court ruling that says you do not speak as a "citizen" (and you do not engage in protected speech) if your speech was pursuant to your official job duties. The First Amendment only protects citizen speech, not work speech. This means that speech relating to politics in general or whistleblowing that does not directly relate to your duties is free speech or, as the Court of Appeals puts it, the "speech fell outside of her official responsibilities." The comptroller who blows the whistle on bad budgeting or missing money may be fired even if he was just doing his job. It sounds unfair, and the cases that have followed Garcetti over the last 20 years have led to some inequitable results, but the idea is that the government has the right to manage its employees to ensure workplace efficiency.

Long has a case, the Second Circuit (Lynch, Park and Robinson) holds, because cooperating with the Commission on Judicial Conduct was not among her official job duties. She was not employed by the Commission and had no duty to report to it. Bear in mind that this ruling falls within a Rule 12 motion to dismiss posture, the Court of Appeals emphasizes, and discovery might yield evidence that would support a contrary result on summary judgment. For now, Long is the victor. Here is why the Court of Appeals rules in Long's favor:

1. Long's refusal to answer Byrne's questions about the investigation was protected speech, and she therefore cannot fired over this. The First Amendment protects your right not to speak -- or to avoid coerced speech -- a principle that the Second Circuit recognized 14 years ago in Jackler v. Byrne, a case that I argued involving a police officer who was unlawfully fired after he refused to lie about a sergeant's misconduct. The fact that Long declined to speak while physically in the workplace does not cut against her case.

2. Long's speech was not among her official job duties. "Long alleges it was not within the scope of her job duties to advise a Town Justice as to the requirements of the Commission," an independent entity that did not employ Long. "There is no clear reason why it would be within Long's job duties to provide Byrne with information related to an independent third-party's investigation into Byrne's suspected misconduct. Even if it were within Long's job duties to tell Byrne who had requested the court files, it would not follow that it was also within Long's duties to give Byrne the information that she sought: the identity of the person who had filed complaints with the Commission.

3. Long asserts that she did not answer Byrne's questions because the Commission advised her that it would be unlawful to do so. This permits the inference that Long acted as a private citizen in not answering Byrne's questions about her interactions with the Commission. While the Second Circuit notes there is no case law in support of this holding, the Court identifies another civilian analogue to Long's refusal to answer Byrne's questions: "the right to reject governmental efforts to require her to make statements that would violate the law." The authority for that is Jackler. 

4. The complaint alleges that Long cooperated with the Commission out of her sense of civil duty. "Her desire to be a law-abiding citizen is not an employment-related motivation" that would kill the case under Garcetti.

5. While Long claimed she acted as a citizen when she turned over the documents at the Commission's request, the lawsuit says little about the nature of her job duties, "making it difficult to discern whether her decision to provide the Commission with the files it requested falls within the scope of those duties." We are going to have to explore this in discovery. 

The Garcetti holding was notable in scaling back free-speech retaliation claims by public employees. This happened after Justice Alito replaced Justice O'Connor in the mid-2000's. Prior to Garcetti, these cases were common in federal court. Since then, many such cases have been thrown out because the speech in question was closely related to the plaintiff's job duties. In this ruling, Judge Lynch outlines the rationales in support of the Garcetti analysis: (1) its holding would not deprive the plaintiff-speaker of any rights that the citizen speaker would enjoy since the plaintiff-speaker owes her speech to the government employment; (2) a contrary rule would create a free speech claim "for every statement public employees make in the course of doing their job," (3) state law claims are still available to such plaintiffs even if they cannot sue under the First Amendment, and (4) there are limitations to Garcetti, as speech that is not ordinarily within the scope of the plaintiff's employment is still protected under the First Amendment. Plaintiffs' lawyers may question these justifications, and I certainly have, but Long's case shows that these claims can still proceed to discovery in limited instances.