Connecticut Employment Law Blog Insight on Labor & Employment Developments for Connecticut Businesses

2d Circuit Rules Employee’s Motive is Not Relevant to Determining Whether Speech is Protected by First Amendment

Posted in Litigation

To borrow an oft-quoted phrase, it is commonly understood that public employees do not shed their constitutional rights at the workplace entrance.  Indeed, the U.S. Supreme Court has held that employees have the right to speak out on matters of "public concern" without retribution, based on First Amendment protections.

But one question that has arisen in such cases is whether the employee’s motive for such speech is dispositive of the whether the employee was speaking out on a matter of public concern. The Second Circuit, in a decision released late last week arising from the termination of a Connecticut state work, said no.

The claims in Sousa v. Roque, (2nd Cir. Aug. 21, 2009), arise from allegations by the employee from Connecticut’s Department of Environmental Protection that he had spoken up about workplace violence and was retaliated against for such speech.

In vacating the District Court’s decision the court noted that:

"this holding does not negate the fact that, as we stated in Lewis, ‘speech on a purely private matter, such as an employee’s dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern.’ …  An employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking ‘upon matters only of personal interest.’. We make clear today, however, that it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern . . . .

Whether or not 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,” … and while motive surely may be one factor in making this determination, it is not, standing alone, dispositive or conclusive.

For public employers in the state, the case will certainly vault to the top of the list of cases that employees will wave to suggest that they have broader First Amendment rights than might have been thought of before.  

On a sidenote, this appears to be a rare instance of a typo on a party’s name appearing in a court opinion. The former Commissioner of the Department of Environmental Protection (who is a named defendant) is named Arthur J. Rocque, Jr. not Roque.   Perhaps the party was misnamed on the complaint, but it’s strange to see such a misspelling in a formal court opinion like this.

(For more analysis of this case, see posts by Wait a Second, Workplace Law Prof, and Law.com)

  • http://www.lawfficespace.com Philip Miles

    I think the bottom line here is that public concern and an employee’s private concern are not mutually exclusive. As such, establishing an employee’s private concern is in no way dispositive of speech touching upon a matter of public concern. Therefore, how can it possibly be a defense to a first amendment claim?
    Thanks for writing this as I hadn’t heard about this case and love reading public employee free speech cases! Also, nice testimonial on the ABA’s Basics 101 (I knew I recognized the name on the back cover from somewhere!).