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Chapter 7

Chapter 7. Workplace Speech & Association Protections. The Grid. The Public Workplace . Connick v. Myers π Myers an assistant prosecutor Connick the DA π transferred unwillingly π circulated “questionnaire” re office policies Δ terminated her

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Chapter 7

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  1. Chapter 7 Workplace Speech & Association Protections

  2. The Grid

  3. The Public Workplace Connick v. Myers • πMyers an assistant prosecutor • Connick the DA • πtransferred unwillingly • πcirculated “questionnaire” re office policies • Δterminated her • πsued, claiming the termination violated her 1st amendment speech rights

  4. Connick (cont.) • Government employees do not automatically relinquish 1st amendment rights • Pickering/Connick balancing test: • Is the speech a matter of “public concern”? • Yes: protected but not absolutely • No: not protected • Δreasonably concluded that π’s actions would disrupt the office and undermine DA’s authority and close working relationships

  5. Pickering/Connick Balancing High Interest Low Interest Low Disruption High Disruption

  6. Connick Notes • What is a matter of “public concern”? • Do courts actually “balance”? • Or do employer’s interests usually trump? • Plausible showing of operational efficiency • Burdens: • π has burden of demonstrating that her speech implicates matters of public concern • π must demonstrate causation -- employer acted because of the employee’s speech • Δthen must demonstrate its actions furthered operational efficiency

  7. Garcetti v. Ceballos • Deputy DA Ceballos investigated and concluded in a memo that an affidavit used to obtain a search warrant was inaccurate • He also testified for the defense, but the court rejected the challenge to the warrant • Ceballos claimed he was subjected to retaliatory employment actions for the memo

  8. Garcetti (cont.) • π’s expressions pursuant to his “calendar deputy” duties • Statements pursuant to official duties not those of “citizens” for 1st amendment purposes • Constitution does not protect them • Taking Connick to its logical conclusion? • if you can’t discipline for official duties, efficiency suffers? • Dissent: “public concern” speech pursuant to official duties should be subject to balancing test

  9. Garcetti Notes • Compare/contrast Connick • Do Garcetti majority and dissent differ only in the deference accorded the employer? • Garcetti’s implications • Whistleblowers • Academic freedom • Freedom of association claims • Do lower level employees now enjoy greater protection than higher level workers? • NTEU: still good law?

  10. City of San Diego v. Roe • San Diego terminated Roe, a police officer, for selling sexually explicit videotapes and related internet activity • Roe sued under §1983 for violation of his 1st amendment free speech rights

  11. Roe(cont.) • π’s actions not protected: • π’s speech related to work • Even though outside the workplace • Police uniform implicated the SDPD • π’s speech not “public concern” • not subject to Pickering/Connick

  12. Roe Notes • Relation between expression workplace? • Yes: Pickering/Connick analysis • No: NTEU applicable • Is “private” speech by public employees protected even if not of public concern? • What if Roe’s videos didn’t feature his police status? • If protected at all, what scrutiny should apply in employer regulation of off-site expression? • Nonconstitutional protections • Civil service codes • Collective bargaining agreements

  13. Problem 7-1 Employee speech rights v. Antidiscrimination and harassment law

  14. The Private Workplace • State statutes

  15. Novosel v. National Ins. • Novosel employed by Nationwide for 15 years • πclaimed he was terminated for refusing to lobby for No-Fault Reform • Δ’s power to hire/fire cannot dictate an employee’s political activities • “while no PA law directly addresses the public policy question at bar, the protection of an employee’s freedom of political expression would appear to involve no less compelling a societal interest than the fulfillment of jury service or the filing of a worker’s compensation claim”

  16. Novosel Notes • Edmunson dismisses Novosel • The vast majority of courts in other jurisdictions have refused to recognize speech or association-based claims under the public policy doctrine • Might employer-coerced political activity be better addressed by the legislature? • Cf. Novosel and Borse/Rulon-Miller • The proposed Restatement • Academic Freedom

  17. Problem 7-2 Suppose SDHS is an academic department in a private university

  18. Problem 7-3 Claim based on a termination resulting from political activity away from work

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