When is a Public Employee’s Speech Not Protected By the First Amendment?

We take it for granted that our criticism of how governmental entities and elected officials operate is protected under the First Amendment of the Constitution.  If you are a public employee, however, that protection is limited.  Speech is not protected if it is made as a part of the employee’s job requirements.  Thus, in Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney’s criticism of the accuracy of a search warrant was not protected speech.  The deputy district attorney had alleged that he had been denied a promotion because of his criticism of the warrant.  The Supreme Court ruled that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.  The Garcetti decision has long been criticized for its chilling impact on public employees who uncover corruption and other illegal conduct in the offices in which they work.  As a result, many states have enacted or expanded “whistleblower” protection laws which offer protection for public employees who report improper conduct by governmental officials and agencies.  The employment attorneys at The Herron Law Offices are experienced in navigating these laws to ensure protection on behalf of whistleblowers.

Outside of the types of cases impacted by the Garcetti decision, First Amendment protections do exist.  In general, the standard that the Courts apply is whether the employee’s speech touches upon a matter of public concern or a matter if purely private concern to the individual employee.  While this test may seem straightforward, in reality it often leads to seemingly inconsistent results.

Consider two fairly recent decisions from the federal Sixth Circuit Court of Appeals, which covers Ohio.  In Naghtin v. Montague Fire District Board, the Court of Appeals addressed a petition circulated by an employee of the Montague Michigan Fire Board seeking the reinstatement of a Department Captain who had been demoted.    Plaintiff Glen Naghtin had been employed by the Fire Board for many years until his termination in December, 2011.  Dennis Roesler had been appointed Fire Chief in 1998.  The Village had authorized the construction of a new fire station in 2009.  After that project began, Donald Roesler (the Fire Chief’s brother and the Captain) began to express serious concerns about possible fire-code violations and deviations from planned specifications.  Donald Roesler requested a leave of absence because of the tension surrounding his concerns.  Chief Roesler instead denied Donald Roesler’s leave and instead demoted him.  When Donald Roesler resubmitted his leave request; the Chief then granted it but the demotion remained in effect.  When nothing had been done about the construction of the new station, it was clear to Donald Roesler that he would either have to resign or return to work in his demoted position.

Plaintiff Naghtin responded by creating a petition calling for Donald Roesler’s reinstatement as Captain and circulated it throughout the Department for various members to sign, but not to Chief Roesler.  Naghtin then sent the signed petition to Chief Roesler and the Montague Fire Board.  The Montague Fire Board held a special Personnel Committee meeting to discuss the petition.  During this meeting, one of the Board’s attorneys advised the Board to formally construe the petition as a complaint.  Montague required employees to follow a four-step complaint procedure, which required employees to first submit complaints to the fire chief and then to an officers’ meeting.  Only if these both failed could an employee submit a complaint directly to the Board.  Because Naghtin submitted the petition directly to the Board, he was found to have violated that procedure.  The Board then held a “special meeting” on December 7, 2011, to discuss a disciplinary response to the petition.  During the meeting, Naghtin stated that he saw the petition as a request for action—not a complaint.  Chief Roesler recommended that Naghtin be terminated.  The Board voted to accept the termination and summarily terminated Naghtin at the meeting.

Naghtin sued Chief Roesler and the Fire Board alleging that they violated his First Amendment rights to free speech and to petition for redress.  The district court granted summary judgment to the Chief and Montague because Naghtin failed to demonstrate that his petition amounted to constitutionally protected conduct.  It found that Naghtin did not speak on a matter of public concern as the petition was “quintessential employee beef.”  Even if the petition was protected conduct, Montague’s interest in department efficiency outweighed Naghtin’s constitutional rights and further, Chief Roesler was entitled to qualified immunity.  The Sixth Circuit affirmed.  The thrust of Naghtin’s petition was a request to reinstate Donald Roesler, whose removal from the position of captain resembled the sort of “internal office politics” that consistently falls outside the scope of First Amendment protection—even though the petition mentioned the “long term good of the Fire District, Fire Department, and its tax payers.”  Naghtin also argued that his motive in writing the petition was to protest the improper dismissal of a fellow employee and not himself, but this was not enough to transform the petition into protected speech.  Finally, Naghtin argued that the petition addressed a matter of public concern through the underlying issues related to the new fire house.  The petition, however, did not include any such reference.  To allow a post-hoc rationalization not contained in the speech itself would begin to “constitutionalize the employee grievance.”

Compare what happened in Naghtin to what happened in Westmoreland v. Sutherland.  Westmoreland was a firefighter with the City of Bay Village, Ohio.  Bay Village is adjacent to Lake Erie.  Due to budget issues, Bay Village had eliminated its dive team, which consisted of firefighters trained to perform rescues in Lake Erie.  After the dive team had been eliminated, there were two drowning incidents involving young children.  Plaintiff Westmoreland subsequently appeared at a City Council meeting to protest the elimination of the dive team.  Plaintiff Westmoreland’ language was highly critical and accusatory of the City’s actions in eliminating the dive team, accusing the City of being responsible for the deaths of the two young drowning victims.  The Mayor ordered Westmoreland be suspended for three shifts, claiming that his comments to the City Council were the City Council meeting constituted insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer.  The Notice of Disciplinary Action further alleged that Westmoreland had made numerous statements that were misstatements, fabrications, insulting, inciteful and were not supported by facts.  Westmoreland filed suit alleging that the suspension violated his First Amendment rights.  Similar to what had occurred in Naghtin, the District Court dismissed Westmoreland’s case on the grounds that his speech was not protected by the First Amendment.

Unlike Naghtin, however, the Court of Appeals reversed the dismissal of Westmoreland’s case.  On the critical issue of whether Westmoreland’s speech at the City Council meeting, the Court of Appeals specifically found that the speech concerned a matter of public concern because of concerns that the cuts to the Fire Department, especially the elimination of the dive team, had jeopardized public safety and hamstrung the rescue effort of one of the drowning victims.  The Court of Appeals also rejected the City’s claim that the alleged falsity of Westmoreland’s statements deprived them of First Amendment protection.  The Court of Appeals held that a public employee is not required to prove his or her statements true before making them and that the employer must prove not only that the statements were false, but that they were made with intentional or reckless disregard for the truth.

The similarities between these two cases are striking:  both involve claims that public safety was being compromised.  The distinction lies in how the matters were reported to the governmental entities involved.  Plaintiff Westmoreland aired his concerns directly to the City Council in public forum and directly addressed his opinion as to how the elimination of the dive team affected public safety, not how it affected his income.  Plaintiff Naghtin indirectly addressed the public safety issues in his petition to have his colleague’s demotion rescinded.  In fact, had Naghtin more directly addressed the public safety concerns to the Fire Board and not the demotion, his speech likely would have been constitutionally protected.  Conversely, had Westmoreland’s speech to the City Council focused more on how the elimination of the dive team affected him personally instead of public safety, he might not have enjoyed First Amendment protection.

The employment attorneys at The Herron Law Firm have experience handling First Amendment retaliation claims.  We can work you through how to protect your First Amendment rights and various avenues of relief available to whistleblowers.  Call the employment attorneys at The Herron Law Firm for more information.


Ohio attorney Mark Herron has been practicing law in Cleveland and Northeast Ohio for over 20 years. Mark opened his law firm in Cleveland in 1993 and since then has concentrated his practice in a variety of areas, including employment law, bankruptcy law, domestic relations law, personal injury, insurance law, business law and litigation.

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