Regarding the DOJ unlawful ban on the Darren Wilson bracelets U.S. Supreme Court Cases
An employee’s good faith belief in the righteousness of his/her cause has little relevance to the case law. Two U.S. Supreme Court cases begin any discussion of employee right to free speech. One case set the standard for employee speech; the other limited the effect of the previous case’s long standing ruling.
In Pickering v. Board of Education, 391 U.S. 563 (1968), a high school teacher wrote a letter to the editor of a local newspaper criticizing the allocation of funds between academics and athletics at the local high school. The teacher was subsequently terminated by the school board for making inaccurate accusations against the school board. In a case where the teacher asserted a violation of her 1st and 14th Amendment rights, the U.S. Supreme Court held that an employee’s interest as a citizen in making public comment needs to be balanced against the employer’s competing interest “in promoting the efficiency of the public services it performs through its employees.”
This “balancing test” will weigh in favor of the employee when the speech is made as a citizen on a matter of public concern 3.
Absent this requirement of public concern or interest and the speech may be subject to discipline by the employer. This was the case in Garcetti v. Ceballos, 547 U.S. 410 (2006), in which the U.S. Supreme Court rejected any balancing inquiry when the employee speech is made as part of his employment.
The Garcetti case involved a supervising deputy district attorney in Los Angeles who, at the request of defense counsel, reviewed a warrant affidavit in which he found several misrepresentations. He brought this information to the attention of his superiors who ignored it and proceeded with the prosecution based on the faulty affidavit. Ceballos wrote a dismissal memorandum which he submitted to the court hearing the criminal case. The trial court rejected his challenge to the submitted evidence stemming from the faulty affidavit. He claimed subsequent retaliation by his employer in violation of his 1st and 14th Amendment rights.
The U.S. Supreme Court ruled for the employer by distinguishing the Pickering balancing criteria from that here where Ceballos’ speech was made pursuant to his official duties, in essence ruling it was speech made as part of his job and not made as a private citizen. The threshold inquiry after Garcetti is the extent to which an employee can be said to be speaking in connection with his/her employment.
Federal Circuit Courts Weigh In
The courts’ treatment of a public employee’s freedom of speech will depend on the nature of that speech and the overall aim of that speech. Two cases from the federal circuit courts involving police officer speech distinguish the differing treatment of employee speech.
The Third Circuit Court of Appeals in Foraker v. Chaffinch, 501 F.3d231 (3d Cir., 2007) ruled against police officers assigned to the firing range who complained to the state auditor regarding conditions at the firing range. In finding their job duties were to report through the chain of command on matters pertaining to range operations and conditions, the court held their speech was not protected. This was not a matter of public concern but was within the scope of their routine duties.
The Sixth Circuit Court of Appeals case of See v. City of Elyria, 502 F.3d 484 (6th Cir., 2007) involved a complaint made to the F.B.I. by an officer reporting misconduct within the police department. The complaint was held to be constitutionally protected speech since it involved a matter of public concern.
The distinguishing factor in these two cases comes down to a question of whether speech is made pursuant to an employee’s official duties. This is a factual issue which courts must consider prior to any ruling on the nature of the speech 4. A determination that the speech is made part of the official duty though can have the incongruous result of muting a First Amendment based retaliatory claim premised on the reporting of potential corrupt activities.
This was the case in Sigsworth v. City of Aurora, 487 F.3d 506 (7th Cir., 2007), wherein the plaintiff officer reported to superiors his suspicions that targets of a drug raid were tipped off beforehand. Though it declined the officer’s First Amendment claim, the court opined as a consolation that Garcetti was not a “categorical rule” depriving public employees of First Amendment protection and that state whistleblower protections might be more availing.
http://www.policeone.com/legal/articles ... ee-speech/
Login
FAQ
Do not go gentle into that good night.
catching up.... between here and Nettles and going to links to Tree house and articles... Dis is duh pwace to bee 
presheeeate it
