regulating political signs and...
TRANSCRIPT
presents
Regulating Political Signs and SpeechStrategies for Local Governments Responding to First Amendment and
presents
Strategies for Local Governments Responding to First Amendment and Land Use Challenges
A Live 90-Minute Teleconference/Webinar with Interactive Q&A
Today's panel features:Randal R. Morrison, Partner, Sabine & Morrison, San Diego
Susan L Trevarthen Member Weiss Serota Helfman Pastoriza Cole & Boniske Fort Lauderdale Fla
A Live 90-Minute Teleconference/Webinar with Interactive Q&A
Susan L. Trevarthen, Member, Weiss Serota Helfman Pastoriza Cole & Boniske, Fort Lauderdale, Fla.
Wednesday, September 29, 2010
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Strafford Publications PresentsREGULATING POLITICAL SIGNS
September 29, 2010
Randal R. MorrisonSabine & Morrison, San Diego CA619 234 2864 rrmatty@yahoo com619.234.2864, [email protected]
www.signlaw.com
Copyright 2010 Randal R. Morrison
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BASELINE:BASELINE: THE MOSELY PRINCIPLE
• The First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.
• [O]ur people are guaranteed the right to express any thought, free from government
hi Th f thi f biddcensorship. The essence of this forbidden censorship is content control.
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(more Mosely)
There is an ‘equality of status in the field of ideas, and government must afford all , gpoints of view an equal opportunity to be heard.
Police Dept of Chicago v Mosley (1972)Police Dept. of Chicago v. Mosley (1972)
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THE MEANING OF MOSLEY
• Political, Campaign and Election Signs – If special rules apply, then the gov’t is choosingIf special rules apply, then the gov t is choosing
the topic of debate– Subject to strict scrutiny – hard to justifyj y j y
• All Non-Commercial Messages should be treated exactly aliketreated exactly alike
• Apply to commercial? Usually NO.
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Strict Scrutiny
• Special rules for politicals means– Choosing topic of debateChoosing topic of debate– Content based regulation– Core of protectionCore of protection
• Strict Scrutiny TestR l ti i– Regulation is necessary
– To serve a compelling state interestN l d
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– Narrowly drawn
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Is Strict Scrutiny Ever Satisfied?
• Burson v. Freeman (US 1992)• No electioneering signs within 100 feet ofNo electioneering, signs within 100 feet of
polling place on election day• Rare example of satisfying Strict Scrutiny• Rare example of satisfying Strict Scrutiny • VALID• Same rule now statutory in many states
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WHAT IS NOT PROTECTEDFirst Amendment does NOT protectFirst Amendment does NOT protect
* Deliberate falsehoods, deceptive commercial ads* Fighting words - incitement Fighting words incitement* Destructive acts / trespass / violence* No access to state secrets under Free Speech* Non-expressive conduct* Obscenity* Threats against life of president or vice pres.* Criminal conspiracies
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Metromedia - Non-commercial
• Plurality of 4 (+2 concurring in result):– RULE TWO: City may not favor commercial speech
over noncommercial– RULE THREE: City may not pick and choose between
different “noncommercial” speakersdifferent noncommercial speakers– These rules restate the Mosley principle
• Did not distinguish between “debate” speech andDid not distinguish between debate speech and mere functional information
• Content based exemptions – fatal
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MESSAGE SUBSTITUTION
• Avoid “favoring” problems with “message substitution”
l ll i i i b i i i• On any legally existing sign, substitute existing message with any non-commercial; in whole or in part – see Outdoor Systems v Mesa, 997 F.2d 604part see Outdoor Systems v. Mesa, 997 F.2d 604 (9th Cir. 1993)
• Do not allow substitution of off-site commercial in place of on-site commercial
• Make applicable only on regulated private land d t diti l bli f
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and traditional public forum areas
Residential Signs
• Ladue v. Gilleo (US 1994)– Home window sign protesting 1st Iraq warHome window sign protesting 1 Iraq war– Not within list of allowed exceptions– UnconstitutionalUnconstitutional
• Lesson: All protected noncommercial messages must be allowed at all times on allmessages must be allowed at all times on all residences – reasonable TPM limits okay
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Politicals in Residential Only?
• NO. • Beaulieu v Alabaster 454 3d 1219 (11thBeaulieu v. Alabaster, 454 .3d 1219 (11
Cir. 2006)Message substitution did not save the rule– Message substitution did not save the rule
• Lawyer should not have to cover up shingle to display “vote for me as your judge” signto display “vote for me as your judge” sign
• Special allowance for noncommercial?
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Exceptions
• General rule with content based exceptions – Usually invalidatedUsually invalidated– See Ballen v. Redmond WA, 466 F.3d 736 (9th
Cir. 2006))• Exceptions based on other factors – time,
location physical rules (airplanes boats) –location, physical rules (airplanes, boats) easier to defend
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Limits on Size, Height
• Baldwin v. Redwood City (9th 1976)– 540 F.2d 1360 (9th Cir. 1976)540 F.2d 1360 (9 Cir. 1976)– Size limit per sign and total per parcel: okay– Cumulative size limit for whole city – uncon’lCumulative size limit for whole city uncon l– Reasonable limits on size: valid
• Height limits okay if content neutral• Height limits – okay if content neutral• Illumination rules – okay if content neutral
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Number Limits
• Arlington County Republic Party v. Arlington County, 983 F.2d 587 (4th Cir. g y, (1993)– Limit of two signs per parcel is uncon’lLimit of two signs per parcel is uncon l
• Baldwin v RedwoodLimit for whole city 4 posters of 16 sf each– Limit for whole city – 4 posters of 16 sf each
• Unconstitutional, in view of size of city
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Number Limits
• Verilli v. Concord, 557 F.2d 664– One per office or ballot item, per parcel –One per office or ballot item, per parcel
Unconstitutional
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Durational Limits
• Politicals -- X days before election, and Y days after y
• Litigated many times; gov’t always loses• Get rid of all time limits for noncommercial• Get rid of all time limits for noncommercial• Leading case: Peltz v. S. Euclid OH
– 11 Oh.St.2d 128, 228 N.E.2d 320 (1967)
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Durational Limits
• More cases on point:– Collier v. Tacoma, 854 P.2d 1046 (WA 1993)Collier v. Tacoma, 854 P.2d 1046 (WA 1993)– Outdoor Systems v. Lenexa KS, 67 F.Supp.2d
1231 (KS 1999)( )– Whitton v. Gladstone MO, 54 F.3d 1400 (8th
Cir. 1995) )
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Area Increase Tied to Event
• Increase total sign display area X days before election – okay IF it applies equally y pp q yto all noncommercial messages– GK Ltd Travel v. Lake Oswego (9th 2006)GK Ltd Travel v. Lake Oswego (9 2006)
• 436 F.3d 1064 (9th Cir. 2006)
– Brayton v. New Brightony g• 519 N.W.2d 243 (Minn. App. 1994)
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Duration Limits
• Curry v. Prince George’s County, 33 F Supp 2d 447 (MD 1999)33 F.Supp.2d 447 (MD 1999)
– How do we tell when one campaign season ends and the next one starts?ends and the next one starts?
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Fees, Permits, Bonds
• Baldwin v. Redwood City– $5 per sign – in cumulative impact, uncon’l$5 per sign in cumulative impact, uncon l
• Verilli v. Concord, 557 F.2d 664 (1977) (9th
Cir 1977)Cir. 1977)– $100 cash bond, per campaign, to guarantee
removal -- unconstitutionalremoval unconstitutional
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Politicals on Public Property
• Taxpayers for Vincent (US 1984)– City can ban all signs on utility poles, guy wiresCity can ban all signs on utility poles, guy wires– Utility poles are not TPF
• TPF Surface of city streets (including• TPF – Surface of city streets (including median), surface of sidewalks connected to pedestrian circulation surface of parkspedestrian circulation, surface of parks
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Commercial Signs – TPF
• Rule: no pvt signs on public property– Exception: REFS / Open House, garage saleException: REFS / Open House, garage sale– Exception: A-frames on sidewalk in defined
commercial areas• Presumably unconstitutional
– Favoring commercial in TPF areas– Favoring commercial in TPF areas– Content based exception to general rule
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Politicals on Public Property
• For non-TPF public property– Gov’t can ban all noncommercial, whileGov t can ban all noncommercial, while
accepting commercial• Lehman v. Shaker Hts (U.S. 1977)• DiLoreto v. Downey Unified (9th 1999)• Children Rosary v. Phoenix (9th 1998)
• But – if any noncommercial is allowed, then door is open to all (most cases)
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Public Property
• But – city can ban all inanimate signs, even in TPF areas – Sussli v. Mateo (CalApp 81)( pp )– Valid only if no content based exceptions
• City MUST allow live person picketing in• City MUST allow live person picketing in TPF areas
Can be subject to reasonable TPM rules– Can be subject to reasonable TPM rules
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Government Speech
• Banner programs – popular, can become controversial
• Speech by gov’t – 1st Amd does not apply• Adoption of private speech• Adoption of private speech
– Pleasant Grove v. Summum (U.S. 2010)PETA Gi (DC Ci 2005)– PETA v. Gittens (DC Cir. 2005)
• Political animals – whimsical public art
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Questions
Website:www signlaw comwww.signlaw.com
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POLITICAL ACTIVITY BY PUBLIC EMPLOYEES:HOW FAR CAN IT GO?HOW FAR CAN IT GO?
S L T th ESusan L. Trevarthen, Esq.(954) 763-4242
strevarthen@wsh law [email protected] 29, 2010
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SEMINAL CASES
Pickering: Leading U.S. SupremeCourt case (1968) on public
l ’ h d th Fi temployee’s speech under the FirstAmendment.
Garcetti: Recently created categoricalexclusion from First Amendmentprotection for official, job-dutyemployee speech.
Mt. Healthy: In mixed motive cases,neutral basis can result ingovernmental action being upheld.gove e ta act o be g up e d.
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Pickering v Board of Ed Of Township High SchoolPickering v. Board of Ed. Of Township High SchoolDist. 205, 391 U.S. 563, 88 S. Ct. 1731 (1968)
Dismissed teacher bro ght retaliator discharge claim against Dismissed teacher brought retaliatory discharge claim against the board of education. Held: teacher’s letter to a local newspaper criticizing the Board of Education was protected speech Test:speech. Test: Was speech about a matter of public concern, or personal to the
employee? If personal, not protected. If of public concern, do employee’s speech interests as citizenIf of public concern, do employee s speech interests as citizen
outweigh governmental employer’s interest in promoting the efficiency of public services?
Was the protected speech a motivating factor in the employee’s t i ti th d l t ti ?termination or other adverse employment action?
Would the employer would have reached the same employment decision in the absence of the protected speech?
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Garcetti v CeballosGarcetti v. Ceballos,547 U.S. 410, 126 S. Ct. 1951 (2006)
Dep t district attorne in the Los Angeles Co nt District Deputy district attorney in the Los Angeles County DistrictAttorney’s Office investigated allegation from defenseattorney, and concluded that a search warrant was supportedby misleading informationby misleading information.
Attorney wrote a memorandum recommending dismissal ofthe case because of the issue to his supervisors, upsettingdeputies assigned to the case. Attorney claimed that he wasdeputies assigned to the case. Attorney claimed that he wasthen reassigned, transferred, and denied a promotion, inretaliation for his memorandum, in violation of the FirstAmendment, and filed a § 1983 action.
Trial court: not protected speech. Ninth Circuit: protectedspeech.
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Garcetti v CeballosGarcetti v. Ceballos,547 U.S. 410, 126 S. Ct. 1951 (2006)
Supreme Court: When public employees make statements Supreme Court: When public employees make statementspursuant to their official duties, they are not speaking ascitizens and can be subject to employer discipline for theirspeech If employees speak outside of their official dutiesspeech. If employees speak outside of their official duties,then Pickering analysis applies.
Plaintiff’s memorandum was prepared as part of hisl d hi ffi i l d i Th femployment and pursuant to his official duties. Therefore,
the speech was not protected by the First Amendment andPickering is inapplicable.
Although this case did not concern political speech, courtsapply it to instances where public employees make politicalstatements and assert First Amendment protection.p
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Mt Healthy City School Dist Bd Of Educ vMt. Healthy City School Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568 (1977)
Mi d M i C C i i ll d d ( h i d l ki Mixed Motive Cases: Constitutionally protected conduct (unauthorized leaking and criticism of school policy to local radio station) played substantial part in decision not to rehire untenured teacher. Teacher had previously been suspended and had been disciplined for use of obscenity with studentssuspended, and had been disciplined for use of obscenity with students.
Did board of education prove that it would have reached same decision even in absence of protected conduct by teacher? If so, no liability.G li bl l if l i iff h h h i d i Government liable only if plaintiff can show that the expressive conduct is substantial or motivating factor for governmental action, and government is unable to show that the neutral justification for action is not a pretext.
Cit f V B S ith 345 A k 313 46 S W 3d 527 (2001) Fi fi ht ' City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001): Firefighter's cursing at supervisors was mere pretext for his termination. True reason was his letter to city officials criticizing police handling of a drowning incident. Although cursing would ordinarily be grounds for termination, cursing was common at fire g y g , gstation and firefighter’s cursing had been tolerated for 15 years because he was a good worker. 46
POLICYMAKERSF i l li i l ffili i i l i i f i For certain employees, political affiliation is a legitimate factor to use indetermining whether such employees may be hired, disciplined anddischarged.
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WHO IS A POLICYMAKER? Elrod and Branti: can the hiring
authority demonstrate that partyaffiliation is an appropriaterequirement for the effectiveperformance of the job? For example, a mayor may appropriately
believe the official duties of various assistantswho help him write speeches or explain hisviews to the press cannot be performedeffectively by employees who do not share hispolitical beliefs and party commitments.
If the answer is “yes,” the employeemay be discharged because of his orher political activity.
Photo courtesy American Broadcasting Company.48
Elrod v BurnsElrod v. Burns,427 U.S. 347, 96 S. Ct. 2673 (1976)
R bli i il i l d h iff d Republican noncivil service employees sued sheriff andcounty organizations, alleging that they were dischargedsolely because they were not Democrats.
Difference between policymaking employees and non-policymaking employees: non-policymaking employeesusually only have limited responsibility, and are not in ay y yposition to thwart the goals of the party.
Patronage dismissals of policymakers was a tool toincentivize loyalty, and was allowed. Patronage dismissal ofincentivize loyalty, and was allowed. Patronage dismissal ofnon-policymaking employees was impermissible. Theseemployees were not policymakers and therefore, could not bedischarged solely on the basis of their political affiliations.discharged solely on the basis of their political affiliations.
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Branti v FinkelBranti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287 (1980)
i bli d f d d h bli d f d Two county assistant public defenders sued the public defender’soffice, for unlawful termination on basis of political affiliations.
Relying on Elrod, the Supreme Court acknowledged that partyy g , p g p yaffiliation may be an acceptable requirement for some types ofgovernment employment. However, party affiliation is notnecessarily relevant to every policymaking position The questionnecessarily relevant to every policymaking position. The questionis whether the employer can demonstrate that party affiliation is anappropriate job requirement.
Primary responsibility of the assistant public defender is torepresent individual citizens in controversy with the State. Anypolicymaking in these jobs must relate to the needs of theindividual clients, and not a political party. Therefore, theterminations were improper. 50
McGroarty v City of Wilkes BarreMcGroarty v. City of Wilkes-Barre,311 Fed. Appx. 553, 2009 WL 418621 (3rd Cir. Feb. 20, 2009)
Pl i tiff Di t f F iliti P k d R ti d i hi Plaintiff was Director of Facilities, Parks and Recreation during hisbrother’s tenure as Mayor. Mayor was voted out, and new Mayoreliminated Plaintiff’s position. Plaintiff sued City and new Mayorfor terminating him based on his support for his brother as Mayorfor terminating him based on his support for his brother as Mayor.
Plaintiff was a policymaker for purposes of First Amendmentspeech. His job responsibilities included: Making policy and personnel decisions; Making policy and personnel decisions; Advocating for the City and the mayor; Proposing a budget.E th h Pl i tiff l i d hi b th i d hi h Even though Plaintiff claimed his brother micromanaged him, heconceded that he did fulfill a number of these policymaking duties.
As a policymaker, Plaintiff could lawfully be terminated for hisliti l ffili ti ith hi b thpolitical affiliation with his brother.
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POLITICAL PARTICIPATIONli i l h d d i f f i Political speech, and advocacy in favor of or against a
political officeholder, is at the core of the protection offeredby the First Amendment.y
However, public employers may prohibit employeeparticipation in political activity as long as such restrictionsare: reasonable; and content-neutral content neutral.
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Brehm v. Trowbridge, ehm v. owb idge,2010 WL 3283376 (D. Neb. Aug. 17, 2010) Police officer attended public forum and expressed views on Police officer attended public forum and expressed views on
matters of public concern. Later, Chief of Police told him that theMayor was unhappy with his statements.
That same year, he and members of his family signed a recall That same year, he and members of his family signed a recallpetition to remove the Mayor from office. His wife and childrenwere actively involved in the recall effort, which failed.
During this time, a Council Member told the Mayor about severald b h li ffi b h M hi h hstatements made by the police officer about the Mayor, which the
Mayor interpreted as threatening. Mayor then did not reappoint the officer to serve another year in
the City police force Although a state statute provided anthe City police force. Although a state statute provided anopportunity for the Plaintiff to appeal, the City Council declined tohold a hearing.
Plaintiff filed a § 1983 action against the City and the Mayor§ g y ypersonally, alleging he was terminated in violation of his FirstAmendment rights. 53
Brehm v. Trowbridge, ehm v. owb idge,2010 WL 3283376 (D. Neb. Aug. 17, 2010)
G i did l b h ll ff d Garcetti did not apply because the recall effort andstatements were not made pursuant to official jobduties.duties.
Applying Pickering: Plaintiff spoke out of public interest and/or concern. Court considered Plaintiff’s interests in protected speech
greater than City’s managerial interests. The statements were a significant or motivating factor in The statements were a significant or motivating factor in
the Mayor’s decision to terminate Plaintiff. Plaintiff stated First Amendment retaliation claim.
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Wachsman v City of DallasWachsman v. City of Dallas,704 F. 2d 160 (C.A. Tex. 1983)
D ll P li & Fi A ti C itt d fi h ll d Dallas Police & Fire Action Committee and fireman challengedCharter provision that prohibited any “employee of the City orassociation of such employees” from publicly endorsing or activelysupporting candidates for City Council and prohibited employeessupporting candidates for City Council, and prohibited employeesfrom circulating petitions for City Council candidates.
Weighing the interests of the City against the First Amendmentrights of the employees Court held that the City had a compellingrights of the employees, Court held that the City had a compellinginterest in minimizing the exposure of its citizens to publicendorsements by City employees because they could bemisconstrued as endorsements by the City itself. Therefore,sco s ued as e do se e s by e C y se . e e o e,restriction on active campaigning and circulating petitions for CityCouncil candidates was reasonable and therefore constitutional.However, restriction on simply endorsing a candidate wasunconstitutional.
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POLITICAL SIGNAGE i h l li i l i i i bli l As with general political participation, public employers may
place restrictions on public employees who wish to displaypolitical signage on their private property. However, suchp g g p p p y ,restrictions must be reasonable and content-neutral.
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Cragg v. City of Osawatomie, Kansas, C agg v. City of Osawatomie, ansas,143 F.3d 1343 (10th Cir. 1998)
City not entitled to summary judgment for retaliatory dischargeclaim based on political speech.
Six months before city election, Council Member alerted long-serving Police Chief that three of the candidates for City Councilserving Police Chief that three of the candidates for City Councilmight be criminals. The City Manager instructed the Chief toinvestigate the criminal records of these candidates. The Chieflater confirmed that they were indeed convicted felons.
The Chief placed a television advertisement on local cable accesschannel, which stated “Be careful who you vote for; three of thecandidates for city office are convicted felons.” Theadvertisement identified the Chief by name but did not discloseadvertisement identified the Chief by name, but did not disclosehis position as Chief of Police. The Chief also placed a politicalsign in his front lawn which read “Vote no on recall.”
Two weeks after the election, the newly appointed City Manager, y pp y gfired the Chief.
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Cragg v. City of Osawatomie, Kansas, C agg v. City of Osawatomie, ansas,143 F.3d 1343 (10th Cir. 1998)
hi f d ll i li di h i i l i f h Chief sued, alleging retaliatory discharge in violation of theFirst Amendment. Trial court: summary judgment for City.
Tenth Circuit: Applying Pickering held that Plaintiff’s Tenth Circuit: Applying Pickering, held that Plaintiff sinterests in free speech outweighed the city’s managementand efficiency interest: Advertisement on cable television and sign in front yard were
political speech. City provided no evidence that this speech contributed to anyy p p y
disruption within the city administration or police department,or that it jeopardized law enforcement within the City.
Reversed trial court Reversed trial court.
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Coady v SteilCoady v. Steil,187 F.3d 727 (7th Cir. 1999)
Cit fi fi ht h d “C f M ” i di l d hi City firefighter had a “Curran for Mayor” sign displayed on his carroof, in support of a mayoral candidate. Other firefighters hadsigns or stickers on their cars supporting the opponent, and Chiefopenly supported the opponentopenly supported the opponent.
Firefighter arrived at the station and parked his personal vehicle onthe sidewalk. He was not yet on duty. Chief ordered the Plaintiffto remove the sign from his car and firefighter placed the sign into remove the sign from his car, and firefighter placed the sign inthe back seat. Unsatisfied, the Chief escorted the firefighter intohis office, cursed at him, and then allegedly struck the firefighter anumber of times, leaving bruises, contusions and cuts.u be o es, eav g b u ses, co us o s a d cu s.
Firefighter filed a § 1983 lawsuit against the Chief, alleging theattack was retaliation for exercising his First Amendment right tofree speech.p
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Coady v SteilCoady v. Steil,187 F.3d 727 (7th Cir. 1999)
Se enth Circ it: “C rran for Ma or” sign atop Plaintiff’s car Seventh Circuit: “Curran for Mayor” sign atop Plaintiff’s carwas political speech and clearly fit the definition of “a matterof public concern.” Plaintiff’s interest in his politicalexpression outweighed the Chief’s interest in the efficientexpression outweighed the Chief s interest in the efficientdelivery of firefighter services.
Applying Pickering, Court noted that Chief offered noevidence that Plaintiff’s conduct in any way poisoned theevidence that Plaintiff s conduct in any way poisoned theatmosphere of the Department. There was nothing disruptive about the time, place and manner
in which Plaintiff chose to exercise his rights (on his personalvehicle while off duty).
Plaintiff’s car was unmarked, so it was not likely a passerbywould interpret his personal endorsement to imply that theDepartment was endorsing the candidateDepartment was endorsing the candidate.
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Yackel v. Choi,Yackel v. Choi, 2010 WL 1927297 (D.N.J. March 16, 2010)
U i i f d t fi fi ht k d hi i k t k t th Upon arriving for duty, firefighter parked his pickup truck at theFire Station parking lot. Mounted in the bed of the truck was a signwhich read “Choi Lies! Save Public Safety in Edison!”M Ch i ki l ti i th i hi h t b Mayor Choi was seeking reelection in the primary which was to beheld the following day. The issue of protecting public safety in theCity was a significant issue in the campaign.
Th t i fi fi ht t ld th Fi Chi f t d hi t That evening, firefighter was told the Fire Chief wanted him tomove his truck, and he complied. The next day, the Departmentreprimanded firefighter for violating an Employee Handbook ruleprohibiting on-duty political speech and suspended him for 5 daysprohibiting on-duty political speech, and suspended him for 5 days.
Plaintiff sued the City, the Chief and the Mayor, alleging theyviolated his First Amendment freedom of speech.
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Yackel v. Choi,Yackel v. Choi, 2010 WL 1927297 (D.N.J. March 16, 2010)
Di i C P hibi i d li i l h bl District Court: Prohibition on on-duty political speech reasonablypromoted appearance of political neutrality, and outweighed Plaintiff’sinterests in on-duty political speech. Access to a nonpublic forum( bli t hi h i t b t diti d i ti f f(public property which is not by tradition or designation a forum forpublic communication) may be restricted by government regulation aslong as the regulation is not based on an opposition to a particulari i t d i blviewpoint; and is reasonable.
City’s policy was content-neutral because it did not distinguish on thebasis of the speaker’s message, and left open ample alternative means of
i i l b d l f li i l h hilcommunication. It only banned employees from political speech whilethey were on duty and using City time and resources.
City’s prohibition on on-duty political speech promoted the appearanceof political neutrality. Political sign in the fire station parking lot couldhave led citizens to infer that the City endorsed Plaintiff’s speech. 62
CAMPAIGN GEAR
A public employer mayplace restrictions on anemployee’s display of
i (h tcampaign gear (hats,shirts, stickers, etc.) if therestriction is reasonablerestriction is reasonableand content-neutral.
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Comm Workers of America v Ector County Hosp DistComm. Workers of America v. Ector County Hosp. Dist.,467 F. 3d 427 (5th Cir. 2006)
C t h it l d d l f i d f i t County hospital suspended employee for wearing and refusing to remove apro-union button while on-duty, in violation of the hospital dress codepolicy.
The dress code policy provided that employees could only wear pins The dress code policy provided that employees could only wear pinsrepresenting their professional association or commemorative pinsdistributed by the hospital. The policy provided the dress code would beenforced uniformly.
Employee brought a § 1983 action against the hospital. Fifth Circuit: Hospital did not violate First Amendment where policy was
reasonable (uniformly applied prohibiting on-duty displays) and content-t lneutral.
Applying Pickering, Court held that employee’s general dissatisfaction withhis working conditions and union support was matter of personal and notpublic concern Even if it were a matter of public concern, employee’s rightpublic concern. Even if it were a matter of public concern, employee s rightof expression would be outweighed by the hospital’s interest in maintainingorder and efficiency over its employees. 64
ELECTIONEERING
Public employers may placerestrictions on proactive politicalactivities of their employees.However they must have aHowever, they must have anecessary and compelling interestin doing so, and must narrowlyt il th i i th t it i ttailor the provision so that it is notvague or overbroad.
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Int’l Assoc of Firefighters of St Louis v City of FergusonInt l Assoc. of Firefighters of St. Louis v. City of Ferguson, 283 F.3d 969 (8th Cir. 2002)
Ci h hibi d h i d “ h ldi City charter prohibited the city manager and “any person holdingan administrative office or position under the city manager’ssupervision” from: running for mayor or city council; and “engag[ing], directly or indirectly, in sponsoring, electioneering or
contributing money or other things of value for any person who is”running for mayor or city council.
Any person who violated this provision could be terminated. City employee and his wife challenged the provision claiming the City employee and his wife challenged the provision, claiming the
provision abridged their freedom of speech in violation of the FirstAmendment.
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Int’l Assoc of Firefighters of St Louis v City of FergusonInt l Assoc. of Firefighters of St. Louis v. City of Ferguson, 283 F.3d 969 (8th Cir. 2002)
Ei hth Ci it i i tit ti l li d d Eighth Circuit: provision was constitutional as applied, and was: narrowly tailored to affect only certain government employees and
applied only in municipal elections for mayor and council; andt t t bli fid i th i ti lit f necessary to protect public confidence in the impartiality of
government services, preserving fairness in City elections, andpreserving the efficiency of City operations.
Question of fact remained as to whether provision violated the Question of fact remained as to whether provision violated thewife’s First Amendment rights because it prohibited employeesfrom “indirectly” engaging in City elections. The wife believedher political speech could be “indirectly” attributed to her husband,p p y ,who could then face termination. The Court agreed that this couldpossibly have a chilling effect on the wife’s speech.
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PROFANITY AND VULGARITY
The First Amendment The First Amendmentdoes not require a publicemployer to tolerate apublic employee’spolitical speech if the
h i b ispeech is embarrassingor vulgar.
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Morris v CrowMorris v. Crow,117 F.3d (11th Cir. 1997)
On Election Day, sheriff’s employee drove unmarked car to apolling precinct where her husband, a former sheriff’s employee,was campaigning for the sheriff’s opponent.
Believing her husband was not campaigning enthusiasticallyenough, the plaintiff screamed at him to “get his a## out next to thestreet” and that she would show him “the f*&#ing way to hold thismother f*&#ing sign.” Plaintiff began to wave at passersby whileg g g p yholding the sign.
Plaintiff’s supervisor was standing and watching nearby with otherofficers. The plaintiff pointed her finger at her supervisor andscreamed at him that she was “on her f*&#ing lunch hour and shescreamed at him that she was on her f*&#ing lunch hour and shehad a right to vote,” and that if the sheriff had not discharged herhusband, he “would be holding a f*&#ing sign for” the sheriff.
Following the incident, managers at the Sheriff’s Officerecommended she be transferred or terminated. The sheriffultimately transferred the plaintiff to the Corrections Department.
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Morris v CrowMorris v. Crow,117 F.3d (11th Cir. 1997)
Plaintiff filed § 1983 claims alleging she was transferred inviolation of her First Amendment rights for endorsing sheriff’sopponent in upcoming election. Jury verdict for the plaintiff,awarding her compensatory and punitive damages.
Eleventh Circuit: sheriff’s interest in promoting efficiency inhis administration outweighed the plaintiff’s interest inengaging in her First Amendment activity by using profanelanguage to castigate her supervisor.
The First Amendment does not require a public employer toq p p ytolerate an embarrassing, vulgar, vituperative, ad hominemattack simply because the employee was waiving a politicalsign while conducting the attack.
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REFUSAL TO PARTICIPATEIN COMPELLED SPEECH
The right to vote is personal, as is the right not tovote. A public employee may enjoy a FirstAmendment protection against compelled speechAmendment protection against compelled speech.
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Moore v. Darlington Twp., oo e v. a lington wp.,690 F. Supp. 378 (W.D. Pa. 2010)
li Chi f d d bli i i if i hi ffi i l Police Chief attended a public meeting in uniform in his officialcapacity. There, a Township Supervisor asked him to sign apetition adding Supervisor’s name to the ballot in the upcomingprimary election. Chief refused because he believed it wasimproper for him to be asked to do so while he was on-duty and inuniform, and told Supervisor the request was unprofessional.
Chief was subsequently demoted to patrolman and ultimatelyterminated.
Chief filed a First Amendment retaliation case against the Chief filed a First Amendment retaliation case against theTownship and its Supervisors, alleging his refusal to sign thepetition was protected speech.
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Moore v. Darlington Twp., oo e v. a lington wp.,690 F. Supp. 378 (W.D. Pa. 2010)
Garcetti: public employee’s speech not protected whenspeech is made pursuant to the employee’s official job duties.However public employers cannot restrict employees’ rightsHowever, public employers cannot restrict employees rightsby creating overly broad job descriptions which bear littleresemblance to the job duties an employee actually performs.
Plaintiff was Chief of Police. There was no evidence thatpetition related to Plaintiff’s duties, and signing or refusing tosign a petition is clearly related to personal right to vote.g p y p g
Plaintiff’s refusal to sign the petition was protected by theFirst Amendment as a form of political affiliation.
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RIGHTS OF THIRD PARTIESl h h bli l l i i h Although public employers may place restrictions on the
political speech of their employees, the employer cannot placesuch restrictions on non-employee third parties. As inp y pFerguson, a constitutionally permissible restriction on anemployee may still cost the public employer, if it constricts therights of the employee’s spouse children etcrights of the employee s spouse, children, etc.
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Horstkoetter v. Dept. of Public Safety,o stkoette v. ept. of ublic Safety,159 F.3d 1265 (10th Cir. 1998)
Two highway troopers’ wives asked a challenger candidate forcounty sheriff to place campaign signs in their yards during electionseason. Troopers’ supervisor ordered the troopers to remove thesigns; departmental policy prohibited members of the Highwaysigns; departmental policy prohibited members of the HighwayPatrol from “displaying partisan political stickers or signs at theirresidences.”
Both troopers objected on basis that signs belonged to their wives.p j g gSupervisor countered that the troopers could face suspension ortermination if the signs were not removed. Wives subsequentlyremoved the signs.D t t d i d it ld ti t f th li it ld Department advised it would continue to enforce the policy; it couldplace restrictions on residential property of state troopers and theirwives; and a trooper’s active role in politics could lead to potentialcriminal liability or an adverse employment action.y p y
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Horstkoetter v. Dept. of Public Safety,o stkoette v. ept. of ublic Safety,159 F. 3d 1265 (10th Cir. 1998)
Both troopers and wives sued under First Amendment Both troopers and wives sued under First Amendment. Tenth Circuit: Under Pickering, troopers’ interest in political
expression outweighed employer’s interests. Police officers would not be forced to reveal their political affiliations Police officers would not be forced to reveal their political affiliations
in order to keep their jobs or earn promotions. The Department could maintain efficiency and harmony among
personnel.li i ld b il bl h bli f f li i l Police protection would be available to the public free from political
overtones. Wife who had a property interest in her house (her name was on the
deed) had a right to place political advertisements on her propertydeed) had a right to place political advertisements on her property.Because the other couple’s house was titled solely in the trooper’sname, that wife did not have the same right.
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Wrzesinski v DanielsonWrzesinski v. Danielson, 231 F. Supp. 2d 611 (W.D. Mich. 2002)
l i l d i li i hi h Court employee was actively engaged in politics, whichannoyed her boss, a Judge. Her political activism caused Judgeto question her ability to run the District Court with impartiality.
While employee was on vacation, Judge learned that she wasagain engaging in partisan politics, and that campaign signs hadbeen placed in her yard Judge fired employee on her returnbeen placed in her yard. Judge fired employee on her returnfrom vacation. Employee claimed that her husband had placedthose signs on their property in her absence and without herk l d b t J d till t i t d hknowledge, but Judge still terminated her.
Employee sued the Judge and the County, alleging that Judgedischarged her in violation of her First Amendment rights.
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Wrzesinski v DanielsonWrzesinski v. Danielson, 231 F. Supp. 2d 611 (W.D. Mich. 2002)
Pl i tiff d d th t J d h d i ht t di h h f Plaintiff conceded that Judge had right to discharge her forengaging in political activity without violating the FirstAmendment. However, she argued that Judge violated herFi A d i h b di h i h b d hFirst Amendment rights by discharging her based on herhusband’s political activity.
The District Court recognized the Horstkoetter decision,gwhich prohibited a public employer from extendingrestrictions on employee political activity to their spouses.
Because Plaintiff’s husband had the right to place signs on Because Plaintiff s husband had the right to place signs onhis property, Judge could not discipline Plaintiff forhusband’s activity without violating her First Amendmentrights.rights.
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WHISTLEBLOWERSA bli l i l h l if i k h k A public employer violates the law if it takes or threatens to take anadverse personnel action against an employee or applicant because of anydisclosure of information that he or she reasonably believes the employerhas committed misconducthas committed misconduct.
Both federal and Florida law provide whistleblower protection to publicemployees reporting agency misconduct. Employers cannot use otherwisepermissible restrictions on political activity to prevent an employee frompermissible restrictions on political activity to prevent an employee fromreporting an employer’s violation of the law.
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WHAT YOU CAN’T LIMIT Speaking at a public forum (e g public parks city hall Speaking at a public forum (e.g., public parks, city hall,
sidewalks) on matters of public concern. Posting signs in a public forum (parked on sidewalk).g g p (p ) Stating who the employee is going to vote for or expressing a
political view, especially if the employee is off-duty and notti it l C t ib ti t liti lacting as a city employee. Contributing to a political
campaign. Political activity by a spouse, children, or other third partyy y p , , p y
over whom the employee does not exercise control, such asthe spouse’s posting of political signage at a jointly ownedhomehome.
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WHAT YOU CAN LIMITi f l d ffi i h h l Running for elected office in the government that employs
the person. Campaigning soliciting money or distributing literature Campaigning, soliciting money, or distributing literature
while on-duty. Posting signs on city employee’s property, both real and
personal, so long as the prohibition is content-neutral andreasonable.
Posting signs in nonpublic fora (government employee Posting signs in nonpublic fora (government employeeparking lot) that would cause a reasonable person to inferthat the employee’s endorsement or statement is attributablet th tto the government.
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QUESTIONS?
Thanks for assistance to Brooke P. Dolara, Esq., qfor her research and assistance with this presentation.
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