Author: Adam Pitchel, Associate Member, University of Cincinnati Law Review
Public employees occupy a unique position within First Amendment jurisprudence. Generally, public employees are private citizens and must be provided all of the rights, protections, and privileges guaranteed under the Constitution. However, public employees are also considered an extension of the State and are limited in the sort of speech they can engage in and the ideas that they may endorse. The Supreme Court attempted to lend a machete to this jurisprudential thicket, and crafted a test in Garcetti v. Ceballos and Pickering v. Board of Education.[1] This test asks first “whether the employee spoke as a citizen on a matter of public concern.”[2] If so, the question then becomes “whether the government employer had an adequate justification for treating the employee differently from any other member of the general public.”[3]
This test has produced several issues relating to what constitutes a “matter of public concern.” One of these issues is whether the motives of the speaker are relevant in deciding if the public employee discussed a “matter of public concern.” The Second, Third, Sixth, and Ninth Circuits argued that speaker motivation is essentially irrelevant for First Amendment purposes.[4] Conversely, the Seventh, Eighth, and Eleventh Circuits decided that speaker motivations have some role in deciding if the public employee spoke on a matter of public concern.[5]
The approach adopted by the Second, Third, Sixth, and Ninth Circuits is correct, simpler, and more applicable to the complicated facts that typically accompany First Amendment cases.
Motives Do Not Matter
In Garcia v. Hartford Police Department, the plaintiff sought to defend his reputation against racially-charged accusations.[6] The Second Circuit determined that any discussions of racial discrimination are squarely of public concern, regardless of the speaker’s motives.[7] It reasoned that any analysis of speaker motivation in this area of the First Amendment would allow employers too much protection from criticism of potentially harmful practices.[8] More specifically, it argued “to hold that these statements were not a matter of public concern would unreasonably allow public employers to inoculate themselves from First Amendment retaliation claims by arguing that the employee spoke . . . for personal reasons.”[9] In Farhat v. Jopke, the plaintiff levelled numerous accusations of corruption, collusion, and discrimination against his employers.[10] The Sixth Circuit determined that the primary issue in government employee speech cases is what the employee said, rather than why he said it.[11] It reasoned that a content-based approach fit better within the Supreme Court’s decision in Connick v. Myers.[12] Similarly, the Third Circuit in Baldassae v. New Jersey determined that the plaintiff’s motive for conducting an investigation into corrupt government practices constituted a matter of public concern.[13] It also analogized the case to Connick, arguing that the motivations of the plaintiff were irrelevant in both cases.[14]
Motives Matter
No circuit has determined that the motivation of a speaker is dispositive of whether he or she is speaking to a matter of public concern. However, the Seventh, Eighth, and Eleventh Circuits have construed that motive or intent is one of several factors to consider when analyzing the public concern prong of the First Amendment test. In Sparr v. Ward, the plaintiff accused her employer of terminating her employment in retaliation for alleging sexual harassment in the workplace.[15] The Eighth Circuit determined that the purpose of the employee’s speech must be to raise issues of public concern rather than advance a private interest.[16] The Seventh Circuit adopted a similar position in Gustafson v. Jones.[17] In Gustafson, the court held that if an employee had purely private motives for their speech, that speech was not protected under the First Amendment.[18] The court elaborated “while motive is relevant to the ‘matter of public concern’ inquiry, we have consistently held that it is not dispositive…. [a] personal aspect contained within the motive of the speaker does not necessarily remove the speech from public concern.”[19]
Motives Should Not Matter
People often have different motivations for performing the same tasks, and these motivations often fluctuate over time.[20] The purpose behind an individual’s actions is often unique to the personal experiences, characteristics, and traits of the individual.[21] Identifying these purposes is challenging, often because people interpret the actions of others differently and draw different conclusions.[22] In a legal context, these issues become pronounced as judges and juries are not only asked to determine someone’s purpose, but judge them on that basis. These judgments become more difficult in First Amendment cases, namely because people attach different meanings and interpretations to the same words.
The Seventh, Eighth, and Eleventh Circuit’s approach has two components. The first prong analyzes the purpose behind the speech of a government employee using the timing and location of the speech, and the second prong analyzes what the government employee actually said. While the second prong is relatively easy to answer, the first prong places a burden on the triers-of-fact. This is because the speaker typically has several motivating factors for the content of their speech. One of these motives is almost always personal, often because the speaker experienced the “matter of public concern” first hand. Examples include allegations of racial and sexual discrimination. While subjects are concerning to the public at large, they always have a personal component. Consequently, the “mixed motives” of a speaker blurs the line between raising public awareness and advancing a personal interest. Additionally, none of the circuits define or describe a methodology to determine a speaker’s intent. Financial gain, professional advancement, and personal vendettas are all possible motives for a government employee to speak out against their employer. However, none of these motives are listed as factors by any of the circuits. Another factor that courts could consider is the relationship between the speaker and the subject-matter of the speech. For example, the court could look at whether a speaker was subjected to harassment or discrimination in the workplace prior to the speaker expressing concerns about those issues. This would help courts determine if the speaker wanted to raise a matter of public concern or vent about a personal issue.
While determining why something was said can be complicated, analyzing what they said is fairly straightforward. The trial record usually contains transcripts, recordings, or testimony relating the general content of the speech. The content-based approach outlined by the Second, Third, Sixth, and Ninth Circuits asks only if this content raises a matter of public concern. This provides a simpler analysis because there is no requirement to consider tone, inflection, or intent. It also relieves triers-of-fact from the responsibility of discerning the subjective purpose of the speech.
However, the Ninth Circuit carves out an exception if the speech is only marginally-related to a matter of public concern. The difference between this exception and the approach used by the Seventh, Eighth, and Eleventh Circuits lies in the order of the questions. The exception only applies when the content of the speech does not squarely raise a matter of public concern.[23] Conversely, the approach requires proof that the purpose of the speech was to raise a matter of public concern, regardless of its content. The burden of proof required under the approach creates a high standard that public employees must meet in order for their speech to be protected under the First Amendment.
This high burden of proof becomes unnecessary mainly because of the second prong of the public employee speech test. Once the speech has implicated a matter of public concern, the employer can rationalize the disciplinary action administered to the employee.[24] The employer can provide evidence that the employee would have been terminated regardless of their speech, or that the speech restriction was necessary for the employer to operate effectively and efficiently. However, if the speech has not implicated a matter of public concern, the public employee loses their First Amendment protection. This cuts against the intent and the language of the First Amendment, which presumes that all individuals have freedom of speech.
Conclusion
People generally have several motives for speech. The test devised by the Seventh, Eighth, and Eleventh Circuits forces trial courts to discern these motives and determine which are most prominent. This places public employees in the untenable position of proving not only that the content of their speech raised a matter of public concern, but their motivations were also geared towards that end. The analysis of the Second, Third, Sixth, and Ninth Circuits paints a clearer picture of the public concern test. If the content of the speech points toward a matter of public concern, the speech is protected under the First Amendment. This analysis simplifies a complicated First Amendment problem. It also comports with the intention of the First Amendment, which provides a significant amount of deference to the rights of the individual.
[1] Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Board of Education of Township High School, 391 U.S. 563 (1968).
[2] Garcetti, 547 U.S. at 418.
[3] Id.
[4] Garcia v. Hartford Police Department, 706 F.3d 120 (2nd Cir. 2013); Baldassare v. New Jersey, 250 F.3d 188 (3rd Cir. 2001); Azzaro v. County of Allegheny, 110 F.3d 968 (3rd Cir. 1997); Johnson v. Multnomah County, 48 F.3d 420 (9th Cir. 1995).
[5] Gustafson v. Jones, 185 F.3d 895 (7th Cir. 2002); Sparr v. Ward, 306 F.3d 589 (8th Cir. 2002); Maggio v. Sipple 211 F.3d 1346 (11th Cir. 2000).
[6] Garcia, 706 F.3d at 124.
[7] Id. at 130.
[8] Id.
[9] Id.
[10] Farhat v. Jopke, 306 F.3d 580, 585-87 (8th Cir. 2002).
[11] Id. at 591.
[12] Id. at 592. The Court held that the plaintiff’s speech was protected because one question from a public employee’s questionnaire touched on a matter of public concern.
[13] Baldassare v. New Jersey, 250 F.3d 188, 196 (3rd Cir. 2001).
[14] Id. at 197.
[15] Sparr v. Ward, 306 F.3d 589, 592-93 (8th Cir. 2002).
[16] Id. at 594.
[17] Gustafson v. Jones, 185 F.3d 895, 908 (7th Cir. 2002)
[18] Id.
[19] Id.
[20] Kristin L. Sotak, A WITHIN- AND BETWEEN-PERSONS LEVELS OF ANALYSIS APPROACH TO MOTIVATION: A MODEL AND EMPIRICAL TESTS 1-9 (2015) (analyzing changes in motivation within and between subjects).
[21] Robert T. Oliver, Human Motivation: Intellectuality, Emotionality, and Rationalization, 22 The Quarterly Journal of Speech 67, 68-69 (2003).
[22] Alex Gillespie & Flora Cornish, Sensitizing Questions: A Method to Facilitate Analyzing the Meaning of an Utterance, 48 Integrated Psychological and Behavioral Science 435, 449 (2014) (analyzing the different interpretations that people have for the same phrase).
[23] Johnson v. Multnomah County, 48 F.3d 420 (9th Cir. 1995).
[24] Garcetti v. Ceballos, 547 U.S. 410 (2006).
