regulating political signs and speech: responding to first
TRANSCRIPT
Regulating Political Signs and Speech:
Responding to First Amendment
and Land Use Challenges
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THURSDAY, JUNE 21, 2018
Presenting a live 90-minute webinar with interactive Q&A
Elena Q. Gerli, Partner, Aleshire & Wynder, El Segundo, Calif.
Alan C. Weinstein, JD, Director of Law & Public Policy Program, Cleveland-Marshall College of Law
and Maxine Goodman Levin College of Urban Affairs at Cleveland State University, Cleveland
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Regulating Political Signs AfterReed v. Town of Gilbert
June 21, 2018
Professor Alan Weinstein
Cleveland-Marshall College of Law and
Maxine Goodman Levin College of Urban Affairs
Cleveland State University
6
What We’ll Cover
• Basic 1st Amendment issues when
regulating political signs
• The Reed v. Town of Gilbert decision
• Court rulings since Reed
• Responding to Reed: Basic Do’s and
Don’ts
7
First Amendment in Sign Regulation
• Government regulation of political signs loses the normal
presumption of constitutionality and is subject to
heightened scrutiny
• Government has greater leeway regulating political signs
on public property vs. on private property
• Most sign ordinances contained at least a few provisions
of questionable constitutionality even before Reed …
and much more after
• Sign litigation is common, expensive, and risky
8
Public Forum Analysis
• Classifications of public property
– Traditional public fora: sidewalks and public parks, content neutrality required
– Designated public fora: content neutrality required
– Limited public fora: viewpoint neutrality required, reasonable in light of forum’s purpose
– Nonpublic fora/nonforum: viewpoint neutrality required, reasonable in light of forum’s purpose
9
Content NeutralityViewpoint Neutrality
• Content neutrality looks at subject matter
• Viewpoint neutrality looks at point of view
– a ban on all signs is content neutral and viewpoint neutral
– a ban on all political signs is not content neutral but is viewpoint neutral
– a ban on signs that criticize government is neithercontent neutral nor viewpoint neutral
10
Regulating Signs on Public Property
• City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) – allows content-neutral time,
place or manner regulations of signs on public property – or even prohibition of all signs on public property
– BUT … Vincent’s allowance of a ban does not apply if public property is a traditional public forum.
• See, e.g., Flaherty v. Knapik, 999 F.Supp.2d 323 (D.Mass. 2014) (“tree-belt” found to be a traditional public forum)
11
Typical Ordinance “A”
Definitions
• Political Sign - A temporary sign or handbill erected prior to, and referencing specific individuals or issues in, a pending election, excluding leased space on the face of permanent, legal, off-site advertising signs (billboards).
• Real Estate Sign - A sign which advertises the sale, rental or lease of the property on which it is maintained.
Exempted from Permit Requirement
• Freestanding on-site real estate
signs 12 square feet or less in
area, having a maximum panel
length or height of eight feet
(excluding real estate tract signs);
• Other signs, including political and "no trespassing" signs, having noncommercial messages and not exceeding two square feet in area on any lot.
12
Typical Ordinance “B”
• No temporary political sign face shall exceed thirty-two (32) square feet in area. The aggregate area of all temporary signs placed or maintained on any lot in one ownership shall not exceed ninety-six (96) square feet.
• Temporary political signs shall not be posted sooner than 90 days prior to a scheduled election administered by the County Elections Department. Said signs shall be removed within 10 days after the election.
13
Reed v. Town of Gilbert, AZ
• 587 F.3d 966 (9th Cir. 2009), on remand, 832 F.Supp.2d 1070 (D. Ariz. 2011), affirmed, 707 F.3d 1057 (9th Cir. 2013), reversed and remanded, 135 S.Ct. 2218 (2015).
14
Reed v. Town of Gilbert, AZ
• “Temporary Directional Signs Relating to a Qualifying Event
(non-profit)”
– 6 s.f. sign allowed for 12 hrs before/1 hr after event
– no more than 4 signs on any property (w/ owner’s
consent)
• “Political Signs”
– unlimited number of signs up to 32 s.f.
– no time limit before election - removal 10 days after
• “Ideological Signs”
– Unlimited number/time for signs up to 20 s.f.
15
16
Content-neutralityCircuit Split
“Need to Read” – 8 & 11
• Do you have to look at the
message to determine if the
rule applies?
• If so, it is content-based.
– political or election signs
– real estate signs
– directional/Identification signs
– instructional signs
– construction signs
– nameplate signs
– price signs
– home occupation signs
“No-censorship” – 3, 4, 6, 7 & 9
• Is the government trying to
regulate or censor content?
• If not, it is content-neutral
because:
– local government needs some
leeway in navigating through
First Amendment law
– a limited number of content-
based provisions that are not
intended to censor or restrict
speech is acceptable
17
Reed v. Town of Gilbert, AZ
• Court rules 9-0 that challenged code
provision is unconstitutional
• 6-3 majority opinion (Thomas, joined by
Roberts, Scalia, Kennedy, Alito &
Sotomayor), plus concurrence by Alito w/
Kennedy & Sotomayor)
• Breyer and Kagan (joined by Breyer and
Ginsburg) each file opinion concurring only in
the judgment18
Reed v. Town of Gilbert, AZMajority Opinion
• “On its face” Rule: If you have to read the
message displayed to determine how a sign is
regulated, then that regulation is content-based.
• “Some facial distinctions based on a message are
obvious, defining regulated speech by particular
subject matter, and others are more subtle,
defining regulated speech by its function or
purpose. Both are distinctions based on the
message a speaker conveys, and, therefore, are
subject to strict scrutiny.”
19
Reed v. Town of Gilbert, AZMajority Opinion
Plus … a “facially” content-neutral
regulation will be considered content-based
if:
▪ a regulation can’t be justified without
reference to the content … or
▪ a regulation was adopted because of
disagreement with the message conveyed
20
Reed v. Town of Gilbert, AZMajority Opinion
If a sign regulation is content-based, it is
subject to strict scrutiny …
•Presumed unconstitutional … so gov’t
bears burden of proof/persuasion to show
the regulation:
– Serves a compelling governmental interest
– Narrowly-tailored to achieve that interest …
not over-inclusive or under-inclusive and
uses “least restrictive means”21
Reed v. Town of Gilbert, AZMajority Opinion
Categorical
signs are
“content-based”
– political/election signs
– real estate signs
– directional/identification signs
– instructional signs
– construction signs
– nameplate signs
– price signs
– home occupation signs
22
Reed v. Town of Gilbert, AZMajority Opinion
“Speaker-
based” or
“Event-based”signs are
“content-based”
• “displayed on a lot
with a property for
sale or rent”
• “displayed on a lot
where construction
is taking place”
• “60 days before a
primary or general
election”
23
Reed v. Town of Gilbert, AZMajority Opinion
So what does that all mean?
▪ Fact that government’s purpose or
justification for regulation had nothing to
do with trying to limit or censor speech
does not matter
▪ Strict scrutiny usually means gov’t loses
– aesthetics and traffic safety held not to be
compelling governmental interests24
Reed v. Town of Gilbert, AZMajority Opinion
Still lots that government can do …
▪ “regulate many aspects of signs that have
nothing to do with a sign’s message”
▪ prohibit signs on public property, so
long as regulation is content-neutral
▪ certain signs may be essential (e.g., for
safety purposes) and “well might survive
strict scrutiny” 25
Reed v. Town of Gilbert, AZ
Justice Alito’s Concurrence
“Here are some rules that would not be
content-based”
size and location, including placement on private property vs. public property
lighting fixed vs. changing message, including
electronic
on-site vs. off-site rules restricting total # of signs per mile of
roadway
“rules imposing time restrictions on signs advertising a one-time event”
Government “may put up all manner of signs to promote safety, as well as directional
signs and signs pointing out historic sites and scenic spots.” 26
Case Study: Effect of ReedWagner v. City of Garfield Heights, OH
• Wagner puts-up a 16 s.f. sign reading: “You do the math: Traffic Camera’s + Rubbish Trash = Mahoney Baloney.”
• City code limited individualpolitical signs to 6 s.f., but allowed multiple signs per lot based on frontage(s)
• City code also limited any sign in residential districts to 12 s.f.
27
Case Study: Effect of ReedWagner v. City of Garfield Heights, OH
• Dist. Ct. finds code is content-neutral, applies intermediate scrutiny and rules code is not narrowly-tailored because more smaller signs are not any better than one large sign 2011 WL 5037206 (N.D. Ohio)
28
Case Study: Effect of ReedWagner v. City of Garfield Heights, OH
• 2013: Dist Ct. subsequently rules code is content-based and neither advanced compelling interests nor was narrowly-tailored 2013 WL 12099080
• 2014: 6th Cir. reversed/remanded, found code was content-neutral and survived intermediate scrutiny. 577 Fed. Appx. 488 (6th Cir. 2014).
• 2015: Reed v. Town of Gilbert decided.
• 2015: S.Ct. vacates 6th Cir. ruling and grants cert. in Wagner. 135 S.Ct. 2888 (2015).
• 2017: 6th Cir. applies Reed, holds code is content-based, city’s interests are not compelling and code not narrowly-tailored. 675 Fed. Appx. 599 (6th Cir. 2017).
29
Problem AreaExemptions
• Marin v. Town of Southeast, 136 F.Supp.3d 548 (S.D.N.Y. 2015) - code that exempted certain signs, but not political signs, from restrictions placed on temporary signage, was content-based and failed strict scrutiny
• Grieve v. Village of Perry, 2016 WL 4491713 (W.D.N.Y.) …code that required permit for non-commercial signs but not for commercial signs, was content-based and failed strict scrutiny
30
Not a Problem AreaTime, Place & Manner Regulations
• Peterson v. Vill. of Downers Grove, 2015 WL 8780560 (N.D. Ill. Dec. 14, 2015) - upheld a content-neutral ban on all painted wall signs
• Vosse v. The City of New York, 144 F.Supp.3d 627 (S.D.N.Y. 2015), aff’d, 666 Fed.Appx. 11 (2d Cir. 2016), cert. den., 137 S.Ct. 1231 (2017) - upheld content-neutral ban on signs extending more than 40 feet above curb level as a reasonable time, place, and manner restriction on speech
31
Not a Problem AreaTime, Place & Manner Regulations
• Shaw v. City of Bedford, IN., 2017 WL 2880117 (S.D.
Indiana. 2017)
– “flags” displayed at an individual residence restricted to 15
s.f. each and combined area of 60 s.f.
– “temporary signs” displayed at an individual residence
restricted to 6 s.f. each and combined area of 36 s.f.
– “permanent signs” are prohibited in residential areas except
at entrances to residential developments … the combined s.f.
of the permitted signs depends on the acreage of the
development
32
Not a Problem AreaTime, Place & Manner Regulations
• Shaw v. City of Bedford, IN., 2017 WL 2880117 (S.D.
Indiana. 2017)
The court upheld the regulations under intermediate
scrutiny and cited Reed as recognizing that content-
neutral regulations may be used by municipalities “to
resolve problems with safety and aesthetics” associated
with signs. 135 S.Ct. 2218, 2232 (2015)
33
Political/Residential Signs
Political or Protest Signs in Residential Areas
• City of Ladue v. Gilleo, 512 U.S. 43 (1994)
– City banned all residential signs, with 10 exceptions – reducing visual clutter
– Held: ban violates the First Amendment
– “Displaying a sign from one's own residence carries a message quite distinct from placing the same sign someplace else.”
34
Political (Campaign) Signs
• Most sign ordinances have special rules for “Political Signs”
• Common claim: “It is content neutral because it treats all
candidates and issues identically.”
• WRONG. It is not content neutral because it is identifying a
“category” of signs based on the content displayed on the sign
35
Political (Campaign) Signs
Time Limits on Display of Political Signs?
• Most common serious error in sign regs
• When challenged, almost always invalidated
• Courts will not tolerate time limits on display of political speech
• Reasonableness of display time is NOT the issue!
• Political messages must be allowed at all times
36
Limits on Number, Size and Height
• Size and Height – limits usually approved if there is no favoring of commercial speech
• Size rule should be cumulative for all signs on a given location
• Limit on number – unconstitutional in most court decisions
Political (Campaign) Signs
37
How to “Get There”
• Allow any and all types of noncommercial speech on signs at all times – do not categorize beyond “noncommercial”
• OK to have reasonable size limits on signs … both single sign and cumulative total
• Optional: increase the allowable display area per parcel for all noncommercial signs for period of specified length … but not defined by reference to election campaign time period
Political (Campaign) Signs
38
www.Ricardopacheco.com v. City of Baldwin Park, 2017 WL 2962772 (C.D.Cal.)
• “For 45 days before and 14 days after any election for which there are polling places operating in the City, five additional signs of up to 12 square feet and four feet tall may be displayed.” emphasis added
• “While the Election Provision seemingly seeks to increase political speech around
elections, that does not preclude a finding that the provision is a content-based
regulation of speech. Indeed, the Supreme Court has “repeatedly rejected the
argument that discriminatory ... treatment is suspect under the First Amendment
only when the legislature intends to suppress certain ideas Reed, 135 S. Ct. at 2229
(quotation marks omitted). Even though “[t]his type of ordinance may seem like a
perfectly rational way to regulate signs, ... a clear and firm rule governing content
neutrality is an essential means of protecting the freedom of speech, even if laws
that might seem entirely reasonable will sometimes be struck down because of
their content-based nature.” Id. at 2231
Political (Campaign) Signsbut not defined by reference to election campaign time period
39
Basic Do’s and Don’ts After Reed
DO
• review code to identify content-based regulations; e.g. “categorical” regs.
• add a severability clause and a substitution clause if you do not have one
• have a strong purpose clause and link that to regulations
DON’T
•enforce content-based
regulations
•enact a moratorium on all
sign permits … narrower
focus and shorter time is
always better
40
DefiBasic Do’s and Don’ts After Reed
Do regulate by “physical” characteristics
✓ freestanding signs
✓ pole
✓ monument
✓ temporary vs. permanent signs
✓ portable signs
✓ “snipe” signs
✓ “blade” signs
✓ building signs
✓ roof or wall or parapet
✓ window
✓ marquee/awning
✓ projecting and suspended
✓ “A-frame” signs
✓ “wind-signs”
Don’t regulate by “category”or “speaker”
X political or election signs
X real estate signs
X directional/identification signs
X instructional signs
X construction signs
X nameplate signs
X price signs
X home occupation signs
41
It’s not just about Reed . . .other issues in sign regulation
42
What should be in a sign code?
• Regulatory Purposes
• Substitution and
Severability Clauses
• Definitions
• Standards for measuring
sign areas/heights
• Regulations for:
– sign placement
– height/area
– setback/spacing/density
– type/time of lighting
▪ Regulations for:– billboards, etc. (??)
– temporary/portable signs
– window/awning signs
▪ Prohibited signs (??)
▪ Non-conforming signs
▪ Administration– Permitting provisions
– Variances
– Appeals
▪ Enforcement
43
Regulatory Purposes
A. To allow businesses, institutions, and individuals to exercise their right to free speech by displaying an image on a sign, and to allow audiences to receive such information.
B. To promote and maintain visually attractive, residential, retail, commercial, historic open space and industrial districts.
C. To provide for reasonable and appropriate communication and identification for on-premise signs in commercial districts in order to foster successful businesses.
D. To provide for reasonable and appropriate communication for on-premise signs within industrial districts.
E. To encourage the use of creative and visually attractive signs.
F. To ensure that signs are located and designed to reduce sign distraction and confusion that may be contributing factors in traffic congestion and accidents, and maintain a safe and orderly pedestrian and vehicular environment.
G. To protect property values.
H. To promote the public health, safety and welfare by avoiding conflicts between signs and traffic control devices, avoiding traffic hazards, and reducing visual distractions and obstructions.
I. To protect and preserve the aesthetic quality and physical appearance of the community.
44
Message Substitution Clause
The owner of any sign which is otherwise allowed by
this sign ordinance may substitute non-commercial
copy in lieu of any other commercial or non-
commercial copy. This substitution of copy may be
made without any additional approval or permitting.
The purpose of this provision is to prevent any
inadvertent favoring of commercial speech over non-
commercial speech, or favoring of any particular
non-commercial message over any other non-
commercial message. This provision prevails over
any more specific provision to the contrary.45
Message Substitution Clause
“A non-commercial message may be
substituted for any commercial message
displayed on a sign, or the content of any
non-commercial message displayed on a
sign may be changed to a different non-
commercial message, without the need for
any approval, provided that the size of the
sign is not altered.”
46
Severability Clause
“If any part, section, subsection,
paragraph, subparagraph, sentence,
phrase, clause, term, or word in this
code is declared invalid, such invalidity
shall not affect the validity or
enforceability of the remaining portions
of the code.”
47
Elena Q. Gerli
Reed v. Town of Gilbert, AZ
“On its face” Rule: If you have to read the
message displayed to determine how a sign is
regulated, then that regulation is content-based.
“Some facial distinctions based on a message are
obvious, defining regulated speech by particular
subject matter, and others are more subtle,
defining regulated speech by its function or
purpose. Both are distinctions based on the
message a speaker conveys, and, therefore, are
subject to strict scrutiny.”
49
Reed v. Town of Gilbert, AZ
However, plenty of content-neutral ways to
regulate temporary signs, including size,
location, building materials, lighting, moving
parts, portability, and time limits for signs
advertising one-time events (Alito, concurring)
Location: free-standing vs. wall signs;
commercial vs. residential properties; on-
premises vs. off-premises
50
What is a city to do?
Regulate temporary signs rather than
political signs
51
Suggested practices
• Prohibit posting of signs on public property
• On-premises vs. off-premises signs
• Prohibit off-premises signs altogether
• Time limits for on-premises signs on
commercial/industrial properties
• Limited regulations for temp signs on
residential properties – cannot prohibit!
• Size, setback, prohibit moving parts/smoke/noise
etc., dilapidated signs
52
Post election removal
• Make removal requirement hinge on date of
event the sign relates to?
• Applies to all temporary signs that relate to an
event with an end date
• Justice Alito thinks this is an acceptable
limitation. But is it?
• Political signs may be a form of expression
unrelated to the specific election
53
Permits and fees
• Permits/fees for on-premises temp signs are common for commercial/industrial properties; over-the-counter applications
• Commercial and industrial properties not likely to clutter with election signs
• Could require permits for residential properties too, except: reality!
• Most residential properties will remove signs after election season
• A property with a lot of signs = public nuisance?
54
Mandatory disclosure of sponsorship
• May be constitutional for commercial
speech signs
• Not likely to be a problem
• But for noncommercial speech, cannot
compel speaker to identify self on the sign
55
Electioneering
• Prohibiting display of campaign materials
and electioneering (i.e., solicitation of votes)
within 100 feet of entrance of polling places
is narrowly tailored to serve the compelling
state interest in preventing voter
intimidation and election fraud.
• Survives strict scrutiny.
Burson v. Freeman, 504 U.S. 191 (1992)
56
Public Employee Speech
and the First Amendment
57
Regulation of signs = government acting
as sovereign
Government also functions as:
Educator
Landlord
Market participant
Speaker
Employer
58
Government as employer
Forum analysis does not apply
Government does not have the same
ability to curtail speech of employees
as private employer
Public employees’ speech is protected
*because government is employer
59
First Amend. rights protected (1)
• Union activities
• Join, or advocate joining, a union; or
• To refuse to fund the union’s political speech
• Can require dues, but cannot require dues for the
purposes of funding political activities
• Protections in addition to labor laws
• Not an absolute right; reasonable limitations
may be imposed
60
First Amend. rights protected (2)
The freedom of political association
◦ Cannot dismiss (or make other employment
decisions) based on employee’s political beliefs or
associations
◦ California: can only prohibit political activities
during working hours
Exception
◦ Policymaking or confidential positions (e.g., agency
heads, personal secretaries, speech writers)
◦ Applies when position supports manager or
elected official in establishing/implementing policy61
Hatch Act: Prohibits federal civil service
employees (+state/local) from
◦ Using their official authority to interfere
with/affect elections
◦ Receiving political contributions (limited
exceptions)
◦ Running for partisan political office
◦ Discouraging political actions of certain
persons
First Amend. rights protected (2)
62
The free exercise of religion in the
workplace
◦ Limits ability to impose disciplinary action on
employee’s religious beliefs or affiliations (e.g.,
working on a religious holiday)
Title VII of the Civil Rights Act
Cal. Const. Art. I, Sec. 4; Fair Employment
and Housing Act
State religious freedom restoration acts
First Amend. rights protected (3)
63
The right to speak out about work matters
that are of public concern
What constitutes a public concern:
◦ Fact-specific determination, based on content, form, and context of a given statement.
First Amend. rights protected (4)
64
When is public employee’s speech
protected?
Test:
1. Involved a matter of public concern
2. Not made pursuant to official job duties
3. Substantial or motivating factor in the adverse action
Pickering balance:
1. Does employee’s speech interest outweigh the govt’s legitimate interest?
2. Employer would not have reached adverse employment action absent the protected speech
65
If the speech
*is a matter of public concern
Pickering balance: employee’s interest against govt’s interest in efficiency Legit govt interests: maintaining
discipline, promoting harmony, confidentiality, efficiency of public functions, and maintaining relationships between supervisors and employees that call for personal loyalty and confidence◦ Must show evidence of disruption
No legit interest in stifling comment on corruption
66
*Is a public concern
• Discussing with coworkers pressure to work in political campaigns
• Writing a letter to a paper regarding misallocation of agency funds among depts
• Publicizing a teachers memo re teacher dress and appearance
• Saying to a friend that the employee wished the President had been assassinated. Rankin v. McPherson, 483 U.S. 378 (1987)
67
Is *not a public concern
• Speech aimed at gathering ammunition against the employer
• Employee grievances regarding internal office policy
68
…not necessarily protected
• Even if the speech relates to a public concern, a disruption to the efficient functioning of the agency might not be protected
• Employer may dismiss or discipline the employee without impermissibly chilling the employee’s free speech rights.
69
Exception: Speech pursuant to
employment
When public employees make statements
pursuant to their official duties, they are not
speaking as citizens for First Amendment
purposes, and the Constitution does not
insulate their communications from
employer discipline.
70
Garcetti v. Ceballos, 547 US 410 (2006)
Ceballos was a DDA.
Wrote a disposition memo in which he
recommended dismissal of a case on the
basis of purported governmental
misconduct
DA proceeded with prosecution
DA’s Office too allegedly retaliatory actions.
71
Garcetti v. Ceballos
“It is well settled that a State cannot condition
public employment on a basis that infringes the
employee's constitutionally protected interest
in freedom of expression. The question
presented by the instant case is whether the
First Amendment protects a government
employee from discipline based on speech
made pursuant to the employee's official
duties.”72
Garcetti v. Ceballos – speech pursuant
to employment
Memo was internal – the fact that it was
not disclosed to the public not dispositive.
◦ Can be protected for speech made at work only
Subject matter of memo concerned
Ceballos’ employment also not dispositive.
◦ Can be protected, e.g., speech by teachers about
how funds are spent
73
Garcetti v. Ceballos
“The controlling factor in Ceballos' case is that
his expressions were made pursuant to his
duties as a calendar deputy. … That
consideration—the fact that Ceballos spoke as
a prosecutor fulfilling a responsibility to advise
his supervisor about how best to proceed
with a pending case—distinguishes Ceballos'
case from those in which the First Amendment
provides protection against discipline.”
74
Connick v. Meyers, 461 U.S. 138 (1983)
• Refused to accept a transfer• Distributed a questionnaire to co-workers re
office transfer policies, office morale, need for a grievance committee, level of confidence in supervisors, and whether employees felt pressure to work in political campaigns.
• Fired for refusal to transfer and for insubordination
• Court held: questionnaire re employment dispute, not matter of public concern (except for political campaigns question). On balance, disruption to efficient function outweighed employee’s 1A
75
Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009)
Sued DA for retaliation for exercising his 1A right to comment on a school project and leaks to the IRS, and to speak through his attorney to the press
Demoted, suspended without pay, charged with misdemeanor crimes, investigated for sexual harassment, denied full benefits, passed over for promotion
Held: Properly alleged a violation of 1Arights on both counts; no qualified immunity
76
Eng v. Cooley
(1) Speech addressed a matter of public concern
DA’s office conceded speech addressed matter of public concern
“Communications on matters relating to the functioning of government are matters of inherent public concern.”
77
Eng v. Cooley
(2) Speech was not made pursuant to Eng’sofficial duties, but as private citizen “Here, there can be no doubt that Eng's
version of the facts plausibly indicates he had no official duty to complain about any leak to the IRS or to authorize [his attorney] to speak to the press about the retaliation being taken against him.”
78
Eng v. Cooley
(3) Adverse employment actions were taken in retaliation of the speech Court concluded that Eng’s speech was a
substantial or motivating factor behind retaliatory actions, based on timing and context
79
Eng v. Cooley
(4) Balance of interests in favor of employee DA waived argument, and “Defendants have neither alleged nor
offered any evidence to support a conclusion that investigating, suspending, prosecuting, or transferring Eng for his speech was “necessary for the [DA]’s office to operate efficiently and effectively.”
80
Eng v. Cooley
(5) But-for causation Disciplinary actions taken on basis of
criminal prosecution and sexual harassment investigation
But, both prosecution and investigation were themselves motivated by Eng’sprotected speech
81
State and city laws
✓State government regulations
✓State constitutions
✓City ethics codes: ordinances, administrative
policies
✓Federal and state whistleblower statutes
✓Labor and employment laws/collective
bargaining agreements
82