Churchill sued the University, arguing that both the investigation and the termination violated his free speech rights under the First Amendment because they were undertaken in retaliation for his protected expression on matters of public concern. At trial, after the evidence was submitted, the University moved for a directed verdict on the claim that the investigation (as distinguished from the termination) was an adverse employment action that constituted unconstitutional retaliation, and the trial court agreed. The termination claim went to the jury, which held for Churchill, concluding that the University’s decision to fire him was substantially motivated by his protected speech. The jury also rejected the University’s defense under Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), finding that the University had not shown by a preponderance of the evidence that it would have fired Churchill for reasons other than his speech. The jury then awarded Churchill only $1 for his economic loss.

In an unusual move, the parties had agreed prior to trial that the University would waive its sovereign immunity defense in exchange for Churchill’s agreement that the University could assert any defenses that its officials or employees could have raised and that those defenses could be presented after the jury’s verdict. Pursuant to this agreement, the University submitted post-verdict motions asserting that despite the jury’s ruling, the University was entitled to quasi-judicial immunity for its officials’ actions. Churchill filed a motion asking that he be reinstated to his faculty position based on the jury’s finding of unconstitutional termination. The trial court ruled in favor of the University on both claims and entered judgment for the defense, from which Churchill appealed.

The state court of appeals affirmed the trial court’s verdict. The court first held that the University was entitled to quasi-judicial immunity from both the damages award and prospective injunctive relief on the retaliatory termination claim. It applied the functional approach to judicial immunity prescribed by the U.S. Supreme Court and determined that the nature and process of the University’s research misconduct investigation and appeal were sufficiently analogous to the traditional judicial function that the process should be protected by absolute immunity. The court next held that the investigation into Churchill’s misconduct was not an adverse employment action actionable under the First Amendment. While conceding that the U.S. Supreme Court has not directly addressed the question of whether and when investigatory actions may rise to the level of First Amendment retaliation, it held that an investigation itself was not adverse action sufficient to violate the Constitution.

A number of troubling implications for public employee litigation emerge from the state appellate court’s decision. First, though the parties agreed to substitute the University for individual defendants, the court’s extension of official immunity to the State seems out of place given that the rationales for individual immunity are substantially different from the justifications for sovereign immunity. One might make a “greater includes the lesser” argument that the University need not have given up its sovereign immunity, so the application of individual immunity still put Churchill in a better position than he would have been in had they not agreed to this trade off. But that would not be true. Had the parties not agreed to this exchange, Churchill could have sued the individual decision makers in their personal capacity, and the court would likely have granted them judicial immunity just it did for the University. But Churchill would have been able to avoid sovereign immunity on his reinstatement claim under Ex Parte Young by suing the officials responsible for his termination for prospective injunctive relief. As the case played out, the court extended the official immunity ruling to Churchill’s claim for injunctive relief as well as damages, thus making him worse off.

Second, the functional approach is employed precisely because the judicial immunity doctrine is driven not as much by concerns for individuals, but by the policy of protecting the integrity of the judicial process. As the Court stated in Butz v. Economou, 438 U.S. 478 (1978):

“[T]he safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges. Advocates are restrained not only by their professional obligations, but by the knowledge that their assertions will be contested by their adversaries in open court. Jurors are carefully screened to remove all possibility of bias. Witnesses are, of course, subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error.”

Most of these features are not present in internal adjudications of employment decisions. Indeed, mechanisms for termination of public employees typically are a far cry from the traditional types of judicial proceedings that the Supreme Court’s immunity cases are concerned with protecting.

In addition, if public employers can evade liability for unconstitutional employment decisions (whether based on race, gender, religion, speech, or other protected categories) by allocating the decision making to quasi-judicial bodies, the law will create compelling institutional incentives to restructure employment decisions in just that way. If courts extend that immunity to injunctive relief as well as damages claims, relief will be difficult to obtain. To be sure, this raises a distinct constitutional concern, as there may be a tension between the barrier presented by quasi-judicial immunity and the requirement that public employers comply with procedural due process, which requires some sort of opportunity for employees to contest actions taken against them. Those procedures are often provided in the form of quasi-judicial bodies.

The adverse employment action holding is equally troubling. Pretext is commonly an issue in public employee retaliation cases. Employers routinely assert in the face of evidence of unconstitutional motive that the adverse employment action was the result of legitimate employment considerations. If an employer wants to terminate an employee for illegitimate reasons, it can launch a full throttle investigation until it finds a justification to terminate or take other adverse action against that employee. Mt. Healthy already provides a defense to employers who can show that they would have taken the same course of action even in the absence of the unconstitutional motive. But how does the law sort out causation issues when the investigation itself is the adverse action, and ultimately uncovers some previously undiscovered fact that leads to a post-hoc justification for termination? Even in the absence of a finding of cause for termination, there may be circumstances in which the act of investigation itself could impose as negative consequences to the terms and conditions of employment as informal reprimands and transfers, which have been held to be sufficiently adverse to be actionable under the First Amendment.

This may well not be the last chapter of the Churchill litigation (though the next two stages of review are both discretionary appeals). But it would certainly not be surprising to see public employers overhaul their employment decision making structures in response to this most recent decision.

The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials.  Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods.  It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.”  Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors.  It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”

Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves.  We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job.  Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.”  Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece.  Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007.  I wonder what the Austin ACLU thinks now.

H/T Slashdot for the story

As First Amendment matter, the Connecticut Supreme Court held that the agreement was not a prior restraint on speech. I am sure that there are articles about the problem of what is state action in this context and whether one can waive First Amendment rights via contract. The court in this case relied on Cohen v Cowles Media Co. and held: “that a party’s contractual waiver of the first amendment’s prohibition on prior restraints on speech constitutionally may be enforced by the courts even if the contract is not narrowly tailored to advance a compelling state interest.”

As I am not a First Amendment guru and/or junkie, all I can say here is that it seems that there are some continuing problems here. The idea “that a judicial restraining order that enforces an agreement restricting speech between private parties [does not] constitute[] a per se violation of the first amendment’s prohibition on prior restraints on speech” appears correct if non-disclosure agreements and other confidentiality agreements are to work. Indeed, as our own Dan Solove and Neil Richards discuss in Rethinking Speech and Civil Liability:

Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech. Both of these rules are widely-accepted. However, there is a major problem – in a large range of situations, the rules collide.

Although I am not sure I agree with the paper’s solution, I recommend the paper as a way to think not only about the Perricone case but the problems encountered when free speech and private law intersect.

The FTC action seems too aggressive, yet it shows that the idea of blogs having some sort of purity is not always the case. But if it prompts bloggers to be more forthcoming about their affiliations and to develop some best practices (as the article suggests), that could be a good outcome. It also seems to embrace the idea of more information is better which may keep many online happy. Those who think tweeting is some sort of anointed right err. The trial context shows that rather well. As for the blog and speech case, I need to find the decision. The article claims that the court “concluded that [the plaintiff's] speech was not a ‘public concern’ but rather was ‘racist, sexist, and bordered on vulgar,’ and it characterized her behavior, in part, as ‘salacious’ and ‘mean spirited.’” I leave it to the First Amendment folks to unravel that one, but I wonder whether this case will be appealed to the Supreme Court.

In any event, these three events show that while we can say that tools that enhance free speech are wonderful in the extreme cases such as the situation in Iran, the more subtle cases raise on-going questions about the contours of speech. As always the issues are familiar. Now, however, simply saying keep your hands off the Internet or keep it free is an insufficient guideline. Too many people are online and too much online behavior tracks offline experiences and problems. In other words, although the technologies seem to make the questions different and requiring special treatment, they may only make the old questions and responses more salient.