CourtHouse2_Small.jpgSeveral types of First Amendment cases have taken center stage this year, as free speech lawsuits by public employees continue to proliferate.  This post addresses three areas that qualify as “hot topics.”

1. Pressing “Like” on Facebook:  Courts continue to struggle with how to address public employee claims for free speech retaliation based on statements made on Facebook or in other social media.  In theory, such cases should not differ from traditional public employee free speech claims, and should have to satisfy the same elements.  In general, for a public employee to have a constitutional free speech claim, the speech has to address a matter of “public concern” and be made outside of the employee’s “official duties,” among other things.  However, completely novel features of speech on social media – for example, its spontaneous yet permanent quality, its tendency to reach unintended audiences, and its taking totally new forms — require Courts to re-formulate traditional doctrines of constitutional law.

The latest development is a federal District Court decision from Virginia in which the Court found that a public employee’s mere pressing of “Like” for a Facebook post did not constitute expression protected by the First Amendment.  On April 24, 2012, in Bland v. Roberts, the Court considered the case of a Hampton, Virginia sheriff who allegedly fired a number of employees for conduct that included “liking” the Facebook page of a political opponent.  The Court ruled that the employees could not predicate a free speech retaliation claim on the simple act of “liking” the page.  The Court reasoned: “It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.  In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. . . .  [¶]  No such statements exist in this case.  Simply liking a Facebook page is insufficient.  It is not the kind of substantive statement that has previously warranted constitutional protection.  The Court will not attempt to infer the actual content of [a plaintiff’s] posts from one click of a button on [the political opponent’s] page.  For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. . . .  [t]he Court does not believe Plaintiffs . . . have alleged sufficient speech to garner First Amendment protection.”

Commentators have criticized the Bland v. Roberts ruling for failing to recognize that “liking” a post constitutes a mode of expression.  It is not clear, however, whether the District Court was making a broader holding about communication on Facebook, or just refusing to draw inferences in that particular case.  

2. Free Exercise of Religion and Delivery of Counseling Services:  Two U.S. Court of Appeals decisions have recently come down considering First Amendment retaliation claims based on the right to free exercise of religion guaranteed by the First Amendment.  Both cases arose in the context of counselors who objected on the basis of religious belief to helping patients with same-sex relationships. 

In a case out of Michigan, Ward v. Polite, decided January 27, 2012, a university counseling program student saw in a patient file that the patient had sought counseling on a same-sex relationship.  She then asked that the patient be transferred to another counselor.  The student was later forced to leave the program on the basis that she asserted her beliefs in a way that violated program standards.  The student sued, alleging infringement of her First Amendment free speech and also free exercise rights.  The trial court granted summary judgment against her, but the Court of Appeals reversed, holding that the case should go to trial on the issue of whether the plaintiff had been forced to leave the program because of her religious beliefs themselves rather than because of the impact her beliefs had on her counseling, if any.  Important to the Court were the facts that the student was willing to see patients who were gay and lesbian, but just not affirm their relationship choices, and that the program’s policy allowed referral/transfers in many other different circumstances unrelated to religion. 

In a case out of Georgia, Walden v. Centers for Disease Control, decided February 7, 2012, the Court reached a different result.  There, the plaintiff, a professional counselor, found while speaking with a patient, that the patient had sought help about a same-sex relationship.  The counselor told the patient that the counselor’s belief system did not allow her to see the patient further.  The patient complained and the department head asked the plaintiff to simply say in the future that she lacked relationship training.  The plaintiff insisted that she had a right to tell her patients truthfully why she could not counsel them.  The Center decided to remove the plaintiff from her contract, and she sued for retaliation based on her assertion of First Amendment free exercise rights.  The Court found that sufficient evidence supported the Center’s decision, and in particular that the Center had not taken its action because of the plaintiff’s beliefs, but because of the manner in which the plaintiff had insisted on applying those beliefs, including needing to inform the patient of them. 

It remains to be seen whether these decisions, Ward and Walden, will be isolated to their particular factual circumstances, or whether they will be the first in a wave of similar free exercise claims in new contexts.

3. The Policymaker Exception:  Third, courts are developing what may prove to be a substantial employer defense to many First Amendment claims – the exception for claims brought by “policymaking” employees.  One court described the exception as follows: it “recognizes that an elected official must be able to appoint some high level, personally and politically loyal officials who will help him implement the policies for which the public voted.  An elected official may dismiss these same policymaking employees if they are no longer loyal, if they oppose his re-election, or simply if the official would prefer to work with someone else.”  See Fazio v. City of San Francisco.  The court described that if the employee is “a policymaker, then . . . his government employment could be terminated for purely political reasons without offending the First Amendment.”  The factors a Court must consider in identifying a “policymaking” position are: “vague or broad responsibilities, relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders.” 

In the last several months, two cases have further developed the exception.  The first is the Ninth Circuit’s decision in Hunt v. Orange County.  There, the Court held that the “policymaker” exception turned essentially on an overarching factor of whether political considerations had sufficient significance in the job duties of the employee in question.  “The essential inquiry” the Court described “is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”  In Hunt the court found that Orange County Sheriff Michael Carona could not rely on the policymaker exception to demote a particular high-ranking employee, William Hunt, who had run against him for Sheriff.  It reasoned: “Here, the record fails to establish that Hunt’s party affiliation or political outlook were relevant to the effective discharge of his professional duties.”  Instead, the factual findings were that “Hunt’s political statements—which were the basis of his demotion—did not cause, and could not have been reasonably predicted to cause, a disruption in the efficient operation of the department.”  The Court’s opinion interprets the applicable test in a way that appears to make it more difficult for employers to invoke the exception.

The second significant case is from Ohio, and shows a federal trial court’s willingness to interpret the “policy maker” exception broadly in the particular context of human resources employees.  In Dixon v. University of Toledo, an Associate Vice President of Human Resources at the university wrote a letter to a local newspaper challenging a story’s comparison of gay rights to civil rights, and made certain generalizations about homosexuality.  The District Court upheld the termination and found no First Amendment free speech claim.  As a separate and distinct basis for its holding, the Court invoked a version of the “policy maker” exception to First Amendment protection applicable in the Sixth Circuit, which covers Ohio.  (The Sixth Circuit exception applies a presumption in favor of the legitimacy of agency action as to policymaking and confidential employees.)  The Court determined that the employee’s job duties were sufficiently key to the work of the Department that they met the requirements of the test, and that the discharge did not violate the First Amendment. 

How extensively will the “policymaker” exception apply in future First Amendment litigation?  The Dixon case shows that a version of the “policymaker” exception can be invoked even as to employees not at the top level of their department, if the right circumstances are present.  This shows the exception could have versatile application.