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Free Speech

Government Employee / Political Candidate's Advertising Gun Raffle for Election Campaign May Be Protected by the First Amendment

"Defendants' argument, which attempts to draw an ill-defined connection between a lawful gun raffle hosted on social media, and obviously tragic and unlawful mass shootings at schools, remains predicated upon numerous, dubious inferences ...—if not upon rank speculation."

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From Caparelli-Ruff v. Bd. of Ed., decided Wednesday by Judge John Robert Blakey (N.D. Ill.):

In the spring of 2022, Plaintiff Elizabeth Caparelli-Ruff, who worked for the Board of Education of East Aurora School District 131, launched a campaign for Regional Superintendent of Schools in Will County. To raise money for her campaign, she advertised a gun raffle on Facebook. The grand prize? One Beretta 9mm Luger. According to the Complaint, the Board learned of the Facebook post and fired Plaintiff without notice, just days after renewing her contract.

The court held that plaintiff had adequately alleged, among other things, a breach of contract claim and a First Amendment retaliation claim:

According to Defendants, Plaintiff's "social media post was not a matter of public concern protected by the First Amendment," and was instead, "about raising money for her own concerns," "related to her personal campaign to find another job." In some sense, perhaps, every politician's run for elected office constitutes a "campaign to find another job." But a speaker's private interest does not preclude the possibility that the speech also touches upon a matter of public concern—Defendants' argument would have merit only if they could show Plaintiff's speech was purely a private matter.

Here, the Complaint alleges that the Facebook post served as a fundraising effort for Plaintiff's political campaign for Regional Superintendent of Schools for Will County. Defendants have presented no basis to distinguish Plaintiff's speech from other campaign-related speech, which generally meets the "public concern" standard….

Defendants also argue that, even if Plaintiff's speech did touch upon a matter of public concern, it remains unprotected by the First Amendment because, as a matter of law, Plaintiff's free speech interests are outweighed by the Board's interests in promoting "an efficient, disruption-free workplace." …

Defendants ask the Court to take judicial notice of the world events taking place at the time of Plaintiff's post—specifically, the massacre of 19 children in a school shooting in Uvalde, Texas, on May 24, 2022—and to find, as a matter of law, that Plaintiff's Facebook post "could hinder the efficiency in the School District's ability to provide an educational environment without disruption at a time of national mourning." On this basis, Defendants suggest that "a disruption-free school environment outweighs any alleged constitutional right held by Plaintiff."

At present, the Court must take Plaintiff's allegations as true and draw all inferences in Plaintiff's favor. And Defendants' argument, which attempts to draw an ill-defined connection between a lawful gun raffle hosted on social media, and obviously tragic and unlawful mass shootings at schools, remains predicated upon numerous, dubious inferences drawn in Defendants' favor—if not upon rank speculation. Defendants' argument on this point thus provides an insufficient basis for dismissal, and the Court defers further consideration of the Pickering balancing test [for government employee speech, where the value of the speech is weighed against its disruption of government operations-EV] until a later phase of this litigation, after the parties have developed the factual record. Plaintiff's claim may proceed….

Note that the general First Amendment rule is that the government may not fire an employee based on the employee's speech if

  1. the speech is on a matter of public concern, and
  2. the speech is not said by the employee as part of the employee's job duties, Garcetti v. Ceballos, 547 U.S. 410 (2006), and
  3. the damage caused by the speech to the efficiency of the government agency's operation does not outweigh the value of the speech to the employee and the public (the so-called Pickering balance). Connick v. Myers(1983).