The Volokh Conspiracy
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Government Employees May Generally Be Disciplined for Sufficiently Controversial Public Political Speech
From the Eleventh Circuit, a reminder that First Amendment protections against government employer action are much weaker than the protections against the government as sovereign (especially, but not only, when the speech is also "disrespectful, demeaning, rude, and insulting").
From Judge Kevin Newsom's opinion today in Labriola v. Miami-Dade County, joined by Judges Robin Rosenbaum and Stanley Marcus:
John Labriola was a media aide for the Miami-Dade Board of County Commissioners. In his own name and on his own time, Labriola wrote an opinion piece that criticized the Equality Act, an as-yet-unenacted bill that would prohibit discrimination based on sex, sexual orientation, and gender identity.
In his piece, Labriola used inflammatory language to describe the LGBT people whom the bill sought to protect. He warned small-business owners "who resist surrendering their consciences to the new 'tranny tyranny'" that, if the bill was passed, "[i]t's going to be a choice of either baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business." So too, Labriola warned local governments of what was to come: "No conservative small town in the South or Midwest will be safe from that weird study in perversity known as Drag Queen Story Hour, in which public libraries host a heavily made-up, flamboyant, homosexual pedophile in a dress who rolls around on the floor with little children as he reads them stories about gender fluidity and LGBT unicorns."
Soon after, in an email to staff members of the Board of County Commissioners, a County citizen took issue with the opinion piece and questioned whether Labriola's views represented the County's. A County employee forwarded that email to the Miami Herald, after which the paper published an article describing the opinion piece as a "slur-laden tirade against transgender people." At that point, the County received a barrage of phone calls from concerned residents.
Labriola's supervisor suspended him from work for three days without pay and ordered him to schedule "training regarding the County's anti-discrimination policies" within seven days and to complete that training within 30 days. According to the Disciplinary Action Report, Labriola's supervisor's employment decisions were partially grounded in Miami-Dade Implementing Order 7-45, an anti-discrimination policy that "prohibits all forms of discrimination and harassment." Thirty days came and went, and, despite three written reminders, Labriola never scheduled the training. For his failure to do so, he was terminated….
"[T]he law is well-established that the state may not demote or discharge a public employee in retaliation for" exercising his First Amendment rights. But a public employee's First Amendment rights are "not absolute." That's because "the State's interest as an employer in regulating the speech of its employees differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general." To accommodate the dueling interests of employee and employer, we use a four-factor test derived from Pickering v. Board of Education (1968), and Connick v. Myers (1983):
To prevail [on a First Amendment claim], an employee must show that: (1) the speech involved a matter of public concern; (2) the employee's free speech interests outweighed the employer's interest in effective and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse employment action. If an employee satisfies her burden on the first three steps, the burden then shifts to the employer [4] to show by a preponderance of the evidence that it would have made the same decision even in the absence of the protected speech….
[The parties agree that] Labriola's speech involved a matter of public concern…. So we begin at the second step: whether Labriola's free-speech interests outweighed the County's interest in effective and efficient fulfillment of its responsibilities. And because Labriola fails at this second step, it's also where our analysis will end.
{[Labriala] argues at length about why his free-speech claim survives Pickering-Connick, but he mentions his free-exercise claim only at the very end of his analysis, in a footnote, which asserts that his free-exercise claim succeeds because it, too, is "based on the Pickering-Connick Test." We'll follow suit and apply the Pickering-Connick test one time—in its free-speech iteration—to assess both claims.}
In order to balance Labriola's free-speech interests against the County's efficiency interests, we must consider several factors, including "(1) whether the speech at issue impedes the government's ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made." Taken together, these factors defeat Labriola's claim….
First, did Labriola's speech impede the government's ability to perform its duties efficiently? The Supreme Court has "recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise."
There is evidence that the opinion piece "impair[ed] … harmony among co-workers." After one staff member read the opinion piece, she told Labriola's supervisor that she found it "[v]ery upsetting" because "she was offended by the words he used." Other coworkers were apparently shocked. Labriola's supervisor stated, "I think people just couldn't believe it." Referring to one of Labriola's coworkers in particular, his supervisor recounted that "she knew John, and she said something like I can't believe he would use those offensive words."
The record also indicates that the opinion piece had "a detrimental impact on close working relationships for which personal loyalty and confidence are necessary." Labriola's supervisor testified that after she learned of the opinion piece, she "kind of lost confidence in him." She elaborated: "[A]s my number [two], I would sometimes talk to him about certain things that pertained to each office that, you know, [we] kept to ourselves"—i.e., confidential things—"so I just felt like I couldn't speak to him freely about those things anymore or get his opinion on certain things." Moreover, she specified that it was because "the words that he used in the article were offensive to [her]" that she "couldn't really speak to him freely about things anymore."
Finally, there is ample evidence that the opinion piece "interfere[d] with the regular operation of the enterprise." The piece "brought a lot more work" to the office, in part because, following its publication, the office received "a lot of phone calls." According to Labriola's supervisor, no other event had ever "caused such a large number of phone calls." Confirming this description, the Chairman's chief of staff testified that the calls "became such a problem that it really prevented us from doing our day-to-day operations during those days." He continued: "[W]e had to refocus a lot of our attention from some of the legislative strategies that we had to dealing with the damage control…. [W]e were put in a situation where we had to reprioritize this issue with Mr. Labriola and completely step off from other initiatives that we had …." …
Second, time, place, and manner. Labriola has time and place in his favor: He was off-duty and away from work when he wrote the opinion piece—a time and place at which his speech enjoys greater constitutional protection.
But manner weighs heavily against him…. To put it mildly, the opinion piece was "disrespectful, demeaning, rude, and insulting." And, based on the shock and appall of his coworkers, it was clearly perceived that way at the office….
Third, context. Precedent in both the Supreme Court and this Court has emphasized that the state possesses a greater interest in controlling employee speech when it occurs in public, rather than private. Labriola disseminated his views through an opinion piece in a public, online newsletter—as opposed to, say, a private conversation with a friend. So "context" indicates that Labriola's interest in his speech is limited….
The court rejected the district court's holding "that because [Labriola] 'is not a journalist,' he can't bring a free-press claim"; the court cited Branzburg v. Hayes (1972), which held that "[f]reedom of the press is a fundamental personal right which is not confined to newspapers and periodicals." But because Labriola didn't explain how the free press arguments offered more protection than the free speech arguments, "his free-press claim sinks along with [the free-speech claim]."
Finally, the court rejected Labriola's claim that the anti-discrimination training requirement violated Labriola's rights to be free of compelled speech:
Labriola asserts that "there is a good possibility that in th[e] [anti-discrimination] training session, the instructor would have pressured or forced [him] to recant his views and/or to say things that he disagrees with." In particular, Labriola suggests that the training would have compelled him to disavow his opposition to "transgenderism, homosexual marriage, and Drag Queen Story Hours."
But … Labriola was directed to attend a generic anti-discrimination training, whose accompanying presentation barely touched on LGBT-related topics. The presentation mentioned such issues only twice: (1) by listing "sexual orientation" and "gender identity or expression" as among twelve "[p]rotected [c]lasses," and (2) by including "LGBTQ Awareness" as one of seven training modules available to—but not required of—County employees. Labriola offers no evidence to the contrary—he relies solely on his conjecture that there was a "good possibility" that he would have been made to say something with which he disagreed. Even construed in the light most favorable to him, see Fed. R. Civ. P. 56, his allegation is rank speculation.
William X. Candela and Andrea Sofia De Ona (Miami-Dade County Attorney's Office) represent the county.
