Vargas: Public employees, private speech

The First Amendment guarantees the right of “free speech” to every American, however, that promise is often more secure for some than others.

In Citizens United v. FEC, the Supreme Court (in)famously held that a corporation could not be singled out as a “disfavored speaker,” but in the same opinion, the court expressly approved a list of groups who could be singled out. The court-approved list of “disfavored speakers” includes school children, prisoners and civil servants. Justice Anthony Kennedy argues these individuals enjoy less First Amendment protection because regulation of their speech is necessary to efficient government functioning.

However, the reach of government regulation has been slowly creeping into more and more private conduct.

The general rule is that, as a public employee, you are only entitled to First Amendment protection for speech you make as a private citizen about a matter of public concern, and that does not interfere with your job. The Supreme Court has called this standard a “practical” inquiry, but critics have decried the decision as “confusing” and likely to suppress a broad range of speech necessary to self-government, including whistleblowing.

Santa Clara County has been a hotbed of these disputes lately, and the situations involved illustrate how subjective the First Amendment’s public employee exceptions can be.

Last year, a number of San Jose Police Department officers were put on leave for racist comments made in a secret Facebook group, and one was eventually terminated. There was little discussion of the First Amendment implications, despite a developing case law around police officer speech.

Then there is the lawsuit by Daniel Chung, who is suing District Attorney Jeff Rosen and his office for retaliation after he was terminated because of an op-ed he wrote questioning hate crime policy in the wake of growing anti-Asian hate crimes.

At first glance, the case of the SJPD officers seems the strongest. Off-duty speech by officers generally enjoys broad First Amendment protection. However, the 9th Circuit Court of Appeals has previously held that off-duty speech can be outside the protection of the First Amendment, if it is disruptive to the work of the department.

In Moser v. Las Vegas Metropolitan Police Department, decided earlier this year, the court held that an officer’s social media post that said he wished a suspect had come in “with some holes in him” could be disruptive. In San Jose, the officers’ social media posts did cause quite a bit of disruption, with the DA’s office moving to dismiss cases they believed were tainted by the involvement of those officers.

The lawsuit of Mr. Chung presents the reverse situation. At first glance, we have a deputy DA discussing hate crimes policy in an op-ed, a subject matter well within his official duties in the DA’s office. This looks similar to the situation in Garcetti v. Ceballos, where a Los Angeles prosecutor was terminated after he wrote a memo criticizing a search warrant affidavit as untrue. However, Mr. Chung, a person of Asian ancestry, was speaking about anti-Asian hate crimes, in a public forum and explicitly claimed to be speaking in his personal capacity.

The fact that both cases present evidence that could be used to justify whichever outcome the judge prefers demonstrates how subjective the standard has become. Allowing the DA to punish relatively innocuous speech, like Mr. Chung’s op-ed, would have a strong “chilling” effect on speech by other public employees. However, we don’t yet know what the DA’s reasons are in the case, since the County Counsel has not yet submitted their reply brief. That reply might tell us of other circumstances that have not yet come to light.

The rapid expansion of social media and the growing efforts by local jurisdictions to prevent employees from discussing their work on these platforms will almost certainly result in more litigation on this topic. It will be important, going forward, to ensure that government policies are drawn up in an effort to balance the need for efficient functioning without allowing the government to reach too far into people’s private lives or to chill the ability of public employees to blow the whistle on government malfeasance.

This issue will be the subject of the next meeting of the Santa Clara County Commission on Equal Access and Employment Opportunity on Nov. 18. Residents are encouraged to attend and offer public comments on the issue of employee speech rights and how the county can better protect those rights while also balancing administrative needs.

San José Spotlight columnist Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce. His columns appear every second Thursday of the month.