In broad terms, the First Amendment prohibits public employers from retaliating against employees who engage in "protected speech". (Connecticut has a statute, Conn. Gen. Stat. Sec. 31-51q that purports to apply the First Amendment to private employers too.) But proving these cases remains difficult for employees.
And even victories may later end up as defeats as a recent case out of the Second Circuit (originating in Connecticut) highlights.
Sousa v. Rocque may sound familiar to blog readers. That’s because in 2009, the Second Circuit reversed a lower court decision granting summary judgment to the employer, finding that the speech that the employee engaged in may be protected. (I covered it back then here.)
But the case was remanded with a suggestion that the lower court proceed with a "Pickering" balancing analysis — based on a Supreme Court case of the same name.
According the Second Circuit, “The Pickering test . . . poses two questions (the first being implicit in Pickering): (1) whether the employee’s speech as a citizen was on a matter of public concern, and if so, (2) whether the employer has shown that the employee’s interest in expressing himself on that matter is outweighed by injury that the speech could cause to the employer’s operations.”
The lower court did such an analysis and again granted the employer’s motion for summary judgment (download). The District Court (Judge Hall presiding) concluded that everything about the speech indicated that it was part of a "private personnel dispute" and not the type of dispute that the public would be interested in.
The employee appealed the decision again to the Second Circuit. This time, the Court upheld the lower court’s decision via a summary order (download here). On what grounds? Well, the Court merely adopted the lower court’s "well-reasoned" opinion, thereby blessing the District Court’s characterization of the dispute.
For employers, it’s a lesson in perseverance and in understanding that First Amendment cases can be won on various grounds. For employees, the case shows that even "victories" can be short-lived. As a result, the case can be used by employers for settlement purposes to show the difficulty in proving such cases.