Joel Dillard & Associates

Representing Working People


Free Speech Fundamentals: How bad does it have to get before you have a retaliation lawsuit?

The firm is pretty preoccupied right now with the issue of free speech, particularly the free speech rights of government employees. It is something we've written about before. (Links are at the bottom of this post.)

The issue for today is: how bad does the retaliation have to be for you to have a federal case for free speech retaliation? The Supreme Court gave one answer in an interesting footnote, the First Amendment . . . already protects state employees . . . from even an act of retaliation as trivial as failing to hold a birthday party for a public employee . . . when intended to punish her for exercising her free speech rights. Rutan v. Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990) (quotations omitted).

What have the courts done with that? The answer: it depends where you live. The courts are split on the issue. In almost the entire country, there is one answer, but in Mississippi, Louisiana, and Texas we have a different answer.

Most places have tried to scale back a little bit on that broad language. They say that only things which would actually deter speech are actionable. In New England, the court said the question is whether an employer's acts, viewed objectively . . . would have a chilling effect on the employee's exercise of First Amendment rights. Barton v. Clancy, 632 F.3d 9, 28 (1st Cir. 2011). In the upper Mid-Atlantic, the court said the question is whether the alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights. Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). In the Mid-West, the court said that anything likely to deter the exercise of free speech is actionable. Power v. Summers, 226 F.3d 815, 820 (7th Cir.2000). And in the West and West Coast the court has said the same. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000);Dahlia v. Rodriguez, 735 F.3d 1060, 1078-79 (9th Cir. 2013).

But what about here in the freedom-and-small-government deep south? Surely the Fifth Circuit - which covers Texas, Louisiana and Mississippi - will be true to the Supreme Court's dicta on this one.

I'm joking, of course. The Fifth Circuit's version of the analysis is far worse. Only official discharges, demotions, refusals to hire, refusals to promote, and reprimands are actionable.​Pierce v. Texas Dept. of Crim. Justice, Inst. Div., 37 F. 3d 1146, 1149 (5th Cir. 1994). Even oral threats or abusive remarks and investigations are not actionable retaliation. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000). Even though it is pretty obvious that this retaliation would frighten and silence the employees, the court does not care. The court has declined to expand the list. . . . noting that some things are not actionable even though they have the effect of chilling the exercise of free speech, because expanding the list may enmesh federal courts in relatively trivial matters. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000).

Let that one sink in. Apparently, the Breaux court thinks chilling free speech is a trivial matter. As wrong-headed as it may be, the Fifth Circuit's test does have one benefit - it is (in theory) pretty easy to apply. Any official disciplinary action is covered, and anything else is not. For example, in Harris v. Victoria Independent School Dist., 168 F. 3d 216 (5th Cir. 1999), the court held that a teacher had retaliation case because, among other things, she was given an official reprimand by her supervisor because of her protected speech.

The term “reprimand” in the caselaw is a business term used in the sense of the act of telling somebody officially that they have done something wrong, whether verbally or in writing. Cambridge Business English Dictionary, Cambridge University Press, 2011. Of course, every employer uses its own language to describe this kind of discipline - and some may have reprimands in many different flavors with different names indicating different severity. They may call it an admonishment or a counseling or a write-up or a reprimand, but this is not the legal issue: the legal question is whether this is employment discipline by the employer itself or mere criticism on the supervisor’s own initiative.

More on free speech of government employees:

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