The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

No Qualified Immunity as to Firing of Assistant Principal for Rant About Democratic National Convention


From Thompson v. Central Valley School Dist. No. 365, decided a month ago by Chief Judge Stanley Bastian (E.D. Wash.) (now on appeal to the Ninth Circuit):

"[W]e … live in a time when a careless comment can ruin reputations and crater careers that have been built over a lifetime because of the demand for swift justice, especially on social media. For private employers, it is their prerogative to take action against an intemperate tweet or a foolish Facebook comment. But when the government is the employer, it must abide by the First Amendment." Moser v. Las Vegas Metro Police Dep't (9th Cir. 2021).

[From 1991 to] August 2020, Plaintiff was an assistant principal at Evergreen Middle School …. After watching the 2020 Democratic National Convention, Plaintiff posted his thoughts about the convention on Facebook.

There is some controversy about the text of the post; I include what the defendant claims he posted (which is what's relevant at this procedural stage of the case), but add in brackets some extra material or different material that plaintiff reports:

Demtard convention opens and the only facts spoken were the names. Lie after lie. The fact checkers could retire on Michelle Obama's rant alone. [What s hatefull racists bitch.] If you need to lie to try and win you are just shit. If you believe them you are even worse. Wake the f@#k [fuck] up America. You are being played by a fake media, athlete [athleats] and performers (who are really clueless and flyers with pedophile man) and the former DNC, now just the little puppet [bitch] of Marxist BLM, Antifa, and Soroas socialist. You are missing out on a great country and the rest of us are sick and tired of your act and going to take you to the woodshed for a proper education. May God help you to pull your heads out of your asses [so we will not have to]. Time for the red tide. Lets see how long until the FB liberal defenders take this one down.

Back to the opinion:

Defendant Ben Small, the Superintendent of CVSD, thought the post was offensive and placed Plaintiff on administrative leave on August 19, 2020. After conducting an investigation into the post, CVSD also uncovered other statements and conduct by Plaintiff that it found to be concerning, Eventually, Plaintiff was demoted from his assistant principal job and is now teaching in the classroom for CVSD….

The Pickering/Garcetti line of cases recognizes that a state, as an employer, has an interest in regulating the speech of its employees that differs significantly from its interest in regulating the speech of the citizenry in general. See Pickering v. Bd. of Ed (1968); Garcetti v. Ceballos (2006). This is because the state, as an employer, has an interest "in promoting the efficiency of the public services it performs through its employees." As a result, a governmental employer may impose certain restrictions on the speech of its employees, restrains that would be unconstitutional if applied to the general public….

In resolving the issue of qualified immunity with respect to a public employee's First Amendment retaliation claim, the Court must assume the truth of the facts as alleged by Plaintiff in evaluating (1) whether he spoke as a private citizen; (2) whether the employer's adverse employment action was motivated by the employee's speech; and (3) whether the employee's speech was a but-for cause of the adverse employment action. The public concern inquiry is purely a question of law—if the speech in question does not address a matter of public concern, the speech is unprotected and qualified immunity should be granted. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." "[T]he content of the speech is generally the most important." In reviewing form and context, courts should focus on the point of the speech, looking to such factors as the employee's motivation and the audience chosen for the speech."

Here, Plaintiff asserts he was speaking as a private citizen, using his private computer, and was speaking on a matter of public concern, namely the 2020 Democratic National Convention. For purposes of this motion, the Court accepts Plaintiff's allegations as true. And in accepting Plaintiff's allegations as true, the Court finds it would have been unreasonable for the school officials to conclude that his speech was unprotected under the First Amendment. Also, at the minimum, Defendants were on notice that even offensive speech deserves some protection. See Snyder v Phelps (2011); see also Rankin v. McPherson (1987) (holding that the arguably "inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern."). {In Snyder, the U.S. Supreme Court concluded the "content" of Westboro's signs plainly related to broad issues of interest to society at large, rather than matters of "purely private concern." The placards read "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Fag Troops," "Semper Fi Fags," "God Hates Fags," "Maryland Taliban," "Fags Doom Nations," "Not Blessed Just Cursed," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You're Going to Hell," and "God Hates You."}

Finally, at this stage of the proceedings, questions of fact exist regarding whether Plaintiff's speech was speech on a matter of public concern; whether Plaintiff spoke as a private citizen when making the speech; and whether Defendant had adequate justification to treat Plaintiff differently than other members of the public. Consequently, Defendants have not shown they are entitled to qualified immunity.