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Free Speech

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

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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.

NEXT: Today in Supreme Court History: March 28, 1955

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  1. Clearly, the only effective response to 'cancel culture' is to bring back dueling.

    1. The only effective response to "cancel culture" is to decline to join any mobs.

      1. Another effective response is to open the floodgates of tort liability for discrimination, Free Speech retaliation, for creating a hostile environment. Hit the woke to ruin. Then end all government support for woke, the tax exemption, the subsidies, the grants, the accreditations. Take the endowments, the assets for tax fraud.

        1. Love your theory that more government oppression is the answer to being oppressed.

          1. At least stop the government funding of the internal enemy.

            1. Open the floodgates.

    2. Very useful decision. This line should become an employment tort as well. Unless the utterance is related to the job, it should be hands off to all private employers. This is not Russia.

      The other benefit? Decision posted at "courtlistener.com" available for free.

      1. As to employment, the school demotion created a hostile work environment based on sex and on race, since his views are more associated with white males. The school should be made to pay for its discrimination.

        1. Disparate impact is sufficient evidence of discrimination.

          https://en.wikipedia.org/wiki/Texas_Department_of_Housing_and_Community_Affairs_v._Inclusive_Communities_Project,_Inc.#:~:text=Texas%20Dept.%20of%20Housing%20and%20Community%20Affairs%20v.,claims%20are%20cognizable%20under%20the%20Fair%20Housing%20Act.?msclkid=1784209caea711ecbe9e02e8d19b017d

        2. Speaking as white male, would you PLEASE shut up and top making the rest of us look so stupid?

            1. Mr? Behar. Are you a human being?

            2. "James, are you a lawyer?"

              assuming the word "lawyer" is defined as someone smarter than you are, then yes, I am. Just go ahead and assume that everyone fits that description.

              Otherwise, the answer is still no.

              1. James. I have no dispute with you. I respect your views. I will just enjoy your personal remarks. I am not being sarcastic.

                1. I don't believe you.

  2. Assistant Principal, with that spelling and grammar? Heaven help us all.

    1. But the punishment was they demoted him back to classroom teacher.

      But it’s been well known for a while that Education majors have the lowest SAT scores. My mother was a teacher for 26 years, she still goes on about some of the absolute idiots she worked with, both other teachers and administrators.

      1. But the punishment was they demoted him back to classroom teacher.

        Yeah. That's weird. You really don't want that guy teaching.

        I'd rather leave him as vice-principal and put him in charge of ballpoint pens or something.

        1. You are assuming that the demotion was motivated by what is good for the school and its mission, as opposed to a petty bureaucrat exploiting power to punish a perceived political enemy.

          1. With that guy's temperament, he's going to do something stupid again, and probably soon. In the classroom, somebody's going to see it and hear about it... if he's working along in a vice-principal's office, nobody will know.

          2. I wasn't assuming that, just suggesting that if the motivation was to improve the school the ballpoint pen job would have been a better option.

            In fact, I don't disagree with you as to what it really was.

        2. "Yeah. That's weird. You really don't want that guy teaching. "

          Meh. That guy's got some problems relating to reality. Put him in the classroom and let the kids wise him up.

    2. That's the left, all they have is personal attack and nitpicking of spelling. What is wrong with his post? You people never address substance.

      1. What is wrong with his post?

        Besides the lack of grounding in objective reality?

        1. James. Stale attack from the KGB Handbook you found in the wet garbage, to impugn the sanity of dissenters. That is all the left has, personal attack.

          1. Calling everybody who laughs at you a "leftist" is your idea of objective reality?

          2. Interesting commingling there, leading off with a personal attack, then whining that all the left has is personal attack.

            Obvious conclusion:
            You are a leftist.

            1. That's pretty funny. I like it.

              1. Like I care if you like it.

    3. "with that spelling and grammar? "

      Based on the entirety of the content, spelling and grammar I'm going with "Drunken Rants for $600, Alex".

    4. The spelling and grammar raise this question for me:

      Assume the 1A prevents the guy from being fired. Can it mean he also would have to be hired? Even if a check of his private postings turned up that level of educational incompetence, and reality-challenged cognition? If he could be rejected for employment on that basis, why can't he be fired as incompetent on that basis?

      1. When I was a grade-school teacher, I was part of a union. And had the commensurate job protections. This guy was moved from admin to a classroom, so one assumes he has a valid teaching credential, and one also assumes he's part of the union.

        If he were to say anything remotely as bizarre and unhinged in the classroom, that's getting us to good cause to terminate a teacher. Probably true if he says it outside the school, but at a place where it's clear he's acting in his "I'm a teacher" capacity. (eg, parent-teacher conference at the parents' home; PTA meetings, etc). But private Facebook postings like the ones he did? He seems like the typical run-of-the-mill batshit-crazy moron. And if crazy morons can't find a job in public education, or in public law enforcement, where are they supposed to go to find work?

        1. "When I was a grade-school teacher, I was part of a union. And had the commensurate job protections. This guy was moved from admin to a classroom, so one assumes he has a valid teaching credential, and one also assumes he's part of the union."

          Why would you assume that a guy in management was in a union?

          1. "Why would you assume that a guy in management was in a union?"

            Because he was moved to a classroom and thus presumably has teacher's credentials. I don't know whether that's true or not, but c'mon, he explained WHY he believed that in the exact part you quoted.

            1. Having teacher's credentials doesn't make you part of the union. Having a job as a teacher makes you part of the union. this fellow was working in a management position.
              He's probably in the union now, now that he's working as a teacher.

        2. What do you mean, "private Facebook postings?" How do you know that? If they were private, how did school administrators get to consider them?

  3. ""[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, "

    'justice'? That's not how you spell "vengeance".

  4. Gee, you threaten to murder some kids, and for some reason those leftist busybodies think you shouldn't be in charge of their kids. Damn snowflakes.

    1. Where was the threat to murder kids?

      Clearly in his rant about the Democratic convention this refers to a revolution:
      “ Time for the red tide.”

      And as we all know calls for revolution are part of the standard classroom curriculum.

      1. "And as we all know calls for revolution are part of the standard classroom curriculum."

        Seemed to be c. 2020. ...

      2. "Clearly in his rant about the Democratic convention this refers to a revolution:
        “ Time for the red tide.”"

        Sure, just like how clearly, when you talk about taking someone to the woodshed, you're talking about government officials.

        1. I read that as red=Republican, not red=blood.

          1. Just because the Republicans L_O_V_E Russia these days, doesn't mean their all reds.

        2. “ Time for the red tide.”

          A blue wave was predicted for the 2018 elections by those wishing it to be so, a red tide is predicted for the 2022 elections by those wishing it to be so.

          This has nothing to do with threats to murder children.

          One wonders where you get your ideas; or if you even believe them and instead may be trolling?

          1. "One wonders where you get your ideas; or if you even believe them and instead may be trolling?"

            One wonders IF you have ideas.

            A blue wave was predicted for the 2018 elections by those wishing it to be so, a red tide is predicted for the 2022 elections by those wishing it to be so."

            It sure would be nice if the people wishing for a "red tide" metaphorically would learn what a "red tide" actually is.

            1. I know what it actually is. It's a toxic marine algae bloom. Which is obviously what this guy was referring to.

              1. But were you wishing for one, like this fellow was?

    2. What in the world are you even talking about? It would be helpful if you’d comment on THIS story.

      1. The preceeding comment should have been limited to people who can read. I'm not sure how you got it.

        1. You’re making up crap about murder. Remember the blue wave? The red tide is the flip side of that.

          You’re correct that someone isn’t reading and comprehending well, but it’s you.

          1. Just keep telling yourself that. It's not like you're likely to let reality influence your opinions.

            1. Where is the reality that this guy inferred murder in any way? Point out the actual sentence.

              1. It was pointed out above, with alternative interpretations.

        2. Why do you always have to comment like an asshole? Why can't you just answer the question? Oh, and I can read just fine.

          1. IF you really can read just fine, just go back and read the answer to the question.

  5. Why should QI apply to this kind of case at all? I understand in the context of a police action, where snap judgment is needed, that QI may have a place. Here, there was plenty of time to consult legal counsel, as the school superintendent conducted an investigation before demoting the person. Why should QI be an escape hatch at all?

    1. Is this a standard that can be incorporated into Qualified Immunity? That would at lease limit the scope.

      I know a number of decisions denying qualified Immunity have been posted as well as a number granting it. I have a hard time determining which way the wind is blowing, ifs it getting more difficult to get QI or easier.

      1. QI was made up by the Supreme Court, but Congress can amend it any way it likes.
        Yes, I would like to see some provision that it does not apply if you have time to consult counsel. And, conversely, if you consult counsel in good faith, then no punitive damages.

        1. I wonder if anyone has tried it in a real case, where someone had the time carefully consider their actions before taking them.

        2. "QI was made up by the Supreme Court, but Congress can amend it any way it likes."*
          * Assuming you have a Congress that can do anything at all, because it isn't fractured along immovable partisan lines.

  6. From the decision: "Although he maintains it was a private post to a select group, it appears it was posted so that others could see it."

    Those are not contradictory. In choosing his "select group" he selected people who were offended.

    1. John
      I think you meant to write, "These are not *inherently* contradictory." I don't think we know exactly what he did and did not do in terms of setting his Facebook settings. If I read this case correctly; that would mean that it's possible that he did do what you say. But it's also possible that he did not--that his settings actually created a post that was open to more than a private-post grouping.

      1. I don't understand why it would matter if the post was a "private" Facebook post or a "public" one. I would have thought it could matter if it was on HIS facebook page vs. the school or school districts. If it's the school or school district he's speaking for the school. If it's his-- even his entirely public page-- it's his private speech.

        The legal document doesn't say whether it was HIS facebook page. It just says ON facebook.

        1. The only reason the post matters is because someone who objected to it saw it and reported it up the chain of command, to somebody else who could see it.
          Political ranting that is kept to people who agree with it is never punishable, because the people who don't like it never see it.

          1. I know that's why someone with the power to demote acted on it. I was just wondering about the distinction between "private" facebook page vs institutional facebook with respect to the legal case for the powers-that-be taking action.

            My village, individual public schools, the library and so on have institutional facebook pages. These often announce policies, changes etc. (Library hours, school closure, calendar stuff, new village policies etc.) Meanwhile, many individuals who work for or are on boards at these entities have their own personal pages.

            I know one of the women on the library board who posts a lot of political stuff on her page got a little grumpy when the board told her that was fine-- but please make it clear your page is your page and not highlight "member of the library board" when posting. ( It can and did cause confusion sometimes because at least some people thought what she posted was board policy. ) Anyway, now her page doesn't have "Jane Doe, Town X library board trustee" plastered on the top. (You can click to details and see she is a trustee-- it's just no longer a banner at the top.)

            Anyway: Her personal page is her personal page. But if she posted something on the "Town X library Facebook Page" that would be interpreted as speaking for the Library as an entity.

            BTW: When I say I'm wondering the legal status-- that's just what I mean. I'm not a lawyer. But I hope it is the case that he can write what he wants on a page that is clearly personal whether or not it is called "private" vs. "public" by Facebook. Facebook's designation merely has to do with home many people see it. It has nothing to do with whether one is acting in their "one personal capacity" vs "as part of their job".

            1. Read Garcetti v. Ceballos. What matters is whether his job normally included speaking to the public.

    2. " In choosing his "select group" he selected people who were offended."

      Which shows either poor judgment or technical incompetence, neither of which are qualities you want in management of your kid's school, or in any school that has kids in it you care about.

      1. I think people who get their panties all twisted up by other people's political opinions are idiots.

        First of all nobody should be so certain that there own opinions are so sacrosanct that they are unwilling to have them challenged or indeed reconsider them themselves.

        Second even if your own opinions are correct you should at least be aware that other opinions exist, and how widespread they are. Perhaps Hillary and the Democrats if they were more willing to listen to the views of the deplorables in 2016 might have figured a more effective response than cocoon around 'can you believe these people? They're deplorable.'

        This guy seems like an idiot, but might actually be a good remedial math teacher or gym teacher, although I have to say he should probably still be an assistant principal, he seems like the archetype of every assistant principal I've ever known.

        1. "I think people who get their panties all twisted up by other people's political opinions are idiots."

          " Perhaps Hillary and the Democrats if they were more willing to listen to the views of the deplorables in 2016 might have figured a more effective response than cocoon around 'can you believe these people? They're deplorable.'"

          So when other people do it, they're idiots, but when you do it, it's concise political analysis?

          "This guy seems like an idiot, but might actually be a good remedial math teacher or gym teacher"

          He also might be a dude who has trouble keeping his political ranting private, or at least, not visible to people who both have power and don't agree with his analysis.

  7. I think I read basically an op-ed a day worded almost exactly like that except substitute "demtard" for Trump (or some hateful iteration of Trump's name) to which there was always social media accolades for all around.

    If people can't see how this is going to end poorly yet, then they are either blind or just a pure tard at this point.

    1. No, you don't read an op-ed a day like that post, you drama queen.

      1. It is pretty fresh when Sarcastro accuses someone of playing fast and loose with the truth....

        1. Insulting me is not much of a substantive denial.

          1. I didn't insult you, just pointed out that you have absolutely no credibility here.

            1. Nah - I wouldn't post here if I didn't get good engagement.

              You just call everyone who disagrees with you a gaslighting lying liar with no credibility.

              And it's not because you're dumb, it's because you're not serious enough to engage your brain to come up with actual responses.

              1. I disagree with your assessment that JtD isn't stupid because he's lazy. Evidence supports the thesis that he is stupid AND lazy.

              2. No I just call you a gaslighting liar as many others do. That is because you ARE a gaslighting liar. You ought to wear that proudly. Take a lot of work to unlock expert mode, but somehow you achieved it.

            2. "just pointed out that you have absolutely no credibility here."

              Whereas you are just dripping with credibility. or whatever that green ooze is.

              1. I thought your tard butt was going to mute me because you got butt hurt over in the other comment section?

                1. You have an active imagination. You shouldn't rely on it for guidance, however.

                2. "I thought"

                  LIAR

        2. How fresh is it when you attack him personally instead of providing some kind of back up for your claims.

      2. There are 10 a day in the Huffpost or Washington Post.

        1. Why are they printing 10 op-eds a day about a guy who doesn't matter?

  8. One of the great issues today is the arrogance of public officials, inividuals on all sides of the political spectrum who want to use their petty powers to control others.

    As long as the Plaintiff did not represent that his post was the officials words or position of the school district he is free to say whatever he wants, as long as it is not incitement to violence, libel etc. The fact that his post may have been semi-literate, stupid, ranting is irrelevant and he should easily win his case. As for QI, how does that play a role here unless the District's position is that the right to censor speech is part of their job as "law enforcers".

    1. Good points, Sidney. I like your comments when they support more freedom.

      1. Twits are free to be twits, but employment in a field that requires non-twittitude may be affected.

        1. Here you go again. Got anything substantive to add, or are you just going to drop these little turdlets in the comments all day?

          1. I support your right to twittitude, please continue.

  9. Ginni Thomas liked Randey Thompson's comment.

  10. The guy was definitely right about Michael Obama. What a piece of trash that person is.

    1. Yeah, ol' Mike Obama's a real piece of trash.

  11. I don't get it. All they did is post factual information.

  12. Imagine if this had been a liberal Vice Prin. ranting about Trump or Bush.... And they got fired due to it.

    There would be outrage. Probably accusations of racism or sexism too.

    1. Those hypothetical double standards are the worst!

      1. Yeah, let's check in with the lady who held up a prop to make it look like she decapitated Donald Trump...

        Oh, she just tweeted "Let me tell you something, it’s a very bad practice to walk up on stage and physically assault a Comedian. Now we all have to worry about who wants to be the next Will Smith in comedy clubs and theaters." And she still has not only her Twitter account, but a blue check.

        None are so blind as those who will not see.

        1. You're really putting a stupid comedian on the same level as a govt official?!?

        2. What does that have to do with AL's hypothetical liberal principle???????

        3. This lady you just imagined still has her imaginary Twitter account? That's an outrage!

      2. Those hypothetical double standards are the worst!

        lying leftists on even days: "There are no double-standards!"
        lying leftists on odd days: "Double-standards are called for!"

        1. ^^^ Lying leftist on March 28 at 2:55pm.

      3. There is nothing hypothetical about that statement, and you know it.

        1. Imagine if this had been a liberal Vice Prin.
          Literally a hypothetical.

          A very silly post from you, I Callahan.

          1. "A very silly post from you, I Callahan."

            color me surprised at such a thing.

  13. Yes, the guy has First Amendment rights. But when you realize that in the mid-1980s the Supreme Court was equally divided about firing teachers for making statements outside of the classroom that opposed sodomy laws (and were considerably more civilly and even politely stated than this guy’s rant), it’s not clear to me that the Left is really being worse than the Right was when it had power.

    1. Yeah, the right at its absolute worst might have been about the same as the left on an average day. Maybe even on a slightly below average day.

      I hope that wasn’t meant as a defense though. Let’s require government to act better than the worst or the very bad times.

      Deranged rants about Obama are about the same as deranged rants about Trump. Everyone might want to try to get a grip.

      If Dems have a respectable leader anywhere in the country, they might want to start maneuvering that person to replace Kalama so there’s an option for when Joe can’t continue. Howard Schultz is the highest profile respectable Democrat leader I can think of.

      1. "Yeah, the right at its absolute worst might have been about the same as the left on an average day. Maybe even on a slightly below average day."

        all they have is below average days. Almost like they're all below average.

      2. "Deranged rants about Obama are about the same as deranged rants about Trump."

        Let's test this theory.
        Trump is secretly a Muslim. He's not actually from this country, you know. He wants to seize everybody's guns and sell them to Mexicans. He wants to open the borders to let all the Mexicans into America (You think it's a surprise that his wall was so easy to get past?)

      3. Blocking James Pollock keeps paying off, over and over.

        1. Yeah. You can stay a loser.

  14. The fact that they moved him back to the classroom rather than firing him is troubling to me. After all, if his words truly caused the kind of disruption that merited is removal from a position as an assistant principal, how much more troubling are they coming from a classroom teacher? I think that if they had actually fired him on the grounds that his words were so far outside the bounds of acceptable conduct by sn educator they would have been more safe legally.

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