When is Public Employee’s Speech Protected? Court Sides with Phone-Sex Memoir’s Author

In a recent decision from the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Illinois, Indiana, and Wisconsin employers), the court addressed First Amendment protections for public employees when they engage in speech not related or tied to their work. The case provides an overview of the proper analysis of public employee retaliation claims based on the First Amendment.

Facts

Amy Harnishfeger authored and published a book under a pseudonym about her time working as a phone-sex operator. The book conveys her perspective as someone who had blindly entered the industry believing it was simply “flirty fun,” only to be horrified by what some of the call-ers discussed. It describes five of the most extreme examples and shares her reflections on the social role of phone-sex operators as well as her own experience. She used a private Facebook account visible only to her “friends” to post a link to the e-book for sale through Amazon.
Shortly thereafter, Harnishfeger began working with the Indiana Army National Guard as a member of the Volunteers in Service to America (VISTA) program, which is part of AmeriCorps. The program is administered by the Corporation for National and Community Service (CNCS), a federal government agency.

Harnishfeger’s job duties were clerical—entering information into a database of community agencies available to provide various services to veterans and their families. After she began her placement, her direct supervisor sent her a Facebook “friend” request. She felt she had to accept the request under the circumstances, which resulted in the supervisor having access to all of the “friends-only” Facebook content, including the book promotion.

The supervisor eventually discovered the Amazon link Harnishfeger had shared for her book and, after purchasing a copy, brought its contents to the program director’s attention. The director requested Harnishfeger be re-moved from the VISTA placement or be terminated early for cause on the grounds that the book was “horrible” and that she wasn’t representing the Guard in a favorable light. Referring to the book, the director said the activities and conduct on her Facebook page didn’t represent the program favorably.

Harnishfeger was removed from her VISTA placement with the Guard. She was given the option of deactivating her Facebook account and seeking sponsorship from one of the other VISTA programs to complete the one-year term of her service. She deactivated her account and applied with several other sponsoring programs but was ultimately terminated from the program for failing to secure an alternative placement.

Public Employee First Amendment Retaliation Claim

To prove a First Amendment retaliation claim, a public employee must establish three elements:

• She engaged in constitutionally protected speech.
• She suffered a deprivation likely to deter protected speech.
• Her protected speech was a motivating factor in the deprivation and ultimately, if the public employer cannot show it would have inflicted the deprivation anyway, its but-for cause.

The first element was the point under dispute in this case, so let’s take a closer look at it.

Determining Whether the Speech is Constitutionally Protected

To determine whether an employee has satisfied the protected-speech element of a retaliation claim, courts apply a balancing test established by the Supreme Court in the Pickering case, which considers both the employee’s and the employer’s interests. Before applying the Pickering test, however, the court must answer the threshold question of whether the speech was constitutionally protected.

To answer the threshold question, an employee must first establish that (1) she spoke as a citizen rather than an employee and (2) she spoke on a matter of public concern rather than on matters only of personal interest. When her speech neither occurs at work nor is about work, however, the second half of the inquiry changes. The key issues instead focus on whether her speech was made outside the workplace, involved content largely unrelated to her government employment, and was addressed to a public audience or covered any matter for which there is potentially a public audience. If she proves those three elements and the employer cannot show her speech was linked by “deliberate steps” to its mission, purpose, or image, then the court can proceed with its balancing test without the need to establish the “public concern” element.

In this case, the court found Harnishfeger’s book could very well satisfy the public concern element but noted the alternative analysis was the easier and clearer path because the book at issue was written and published a month before she began her VISTA service. It was written for a general audience about the personal experiences of sex workers and their social role, “matters for which there is undoubtedly a public audience.”

The 7th Circuit noted the recurring theme that in cases in which employees were found to be lawfully discharged, they had deliberately attempted to trade on their public em-ployment while simultaneously claiming the speech was unrelated. Harnishfeger, on the other hand, wrote a book on a matter of public concern wholly unrelated to her work through the VISTA program. As such, she was entitled to have the court proceed under the Pickering balance test.

Balancing Employee and State Interests

The Pickering test seeks to address the challenge presented by the public-employee speech doctrine of balancing the employee’s interests as a citizen in commenting on matters of public concern and the state’s interest as an employer in promoting the efficiency of the public services it provides through its employees. To determine whether the balance should be struck in favor of speech or efficiency, the court considers seven factors:

• Whether the speech would create problems in maintaining discipline or harmony among coworkers;
• Whether the employment relationship is one in which personal loyalty and confidence are necessary;
• Whether the speech impeded the employee’s ability to perform her responsibilities;
• The time, place, and manner of the speech;
• The context in which the underlying dispute arose;
• Whether the matter was one on which debate was vital to informed decision making; and
• Whether the speaker should be regarded as a member of the general public.

Importantly, at trial, the employer has the burden of showing the balance weighs in its favor. Specifically, it must cite facts regarding what its concerns actually were with the speech at issue, as opposed to some hypothetical, rational basis that might justify the employee’s termination.
In concluding the balancing didn’t fall in VISTA’s favor, the 7th Circuit noted that the amount of caution employees must exercise over the words they speak varies based on the extent of authority and public accountability their role entails. Harnishfeger’s role was clerical, involving an extremely limited scope of work and public contact.
The court further noted there was no basis in the record to show anyone would distrust the Guard if the known author of a phone-sex memoir were permitted to continue providing data entry services on its behalf. Further, with respect to the content of the book, no one would believe the Guard somehow condoned domestic abuse or sexual violence, in that the book vehemently chastised those who would engage in such conduct. The court concluded the employer’s side of the Pickering balance was empty.

Bottom Line

When a public employer considers taking adverse employment action against an employee for conduct arguably protected by the First Amendment, it should thoroughly vet its decision in light of (1) whether the speech is constitutionally protected and (2) whether the Pickering balancing test weighs in favor of it or the employee. Given your burden of persuasion in defending your conduct under these circumstances, you should ensure the decision-making process is well-documented, and you should consult a qualified labor and employment attorney before taking any action.

This article, slightly modified to note recent updates, was featured in the February issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.