Protection of Sources
Görmüş v. Turkey
Closed Contracts Expression
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The U.S. Appeals Court for the Eleventh Circuit held that the speech of employees who had issued complaints against their employer was not protected under the First Amendment because they spoke as employees and not citizens in their complaint and the content of their complaint was private rather than public. The Court reasoned that the memorandum complaining about the Director of the psychology center where they worked was written by the employees in the course of their ordinary job duties. It said if an employee spoke as an employee and on matters of personal interest, the First Amendment was not implicated, and the constitutional inquiry ended without consideration of the First Amendment. Moreover, the Court said that the appellants’ speech “owes its existence to their professional responsibilities, and it “cannot reasonably be divorced from those responsibilities’.”
Five university psychologists submitted a Memorandum to university officials regarding mismanagement by the Director of the psychology center in which they worked. The center subsequently dismissed the five psychologists from their positions citing a reduction in the workforce of the health center. The five psychologists contended that their memorandum constituted citizen speech on a matter of public concern pursuant to the First Amendment and that their termination violated the Constitution. The Appeals Court for the Eleventh Circuit deemed that psychologists’ speech constituted employee speech, and thus, was not protected by the First Amendment.
Circuit Judge Charles R. Wilson delivered the opinion of the United States Appeals Court for the Eleventh Circuit. The main issue before the court was whether a written complaint made “by five university employees alleging mismanagement by their supervisor which preceded their termination is entitled to First Amendment protection.” [p. 2] The appellants argued that the Memorandum constituted speech as citizens on a matter of public concern. The Board of Regents alleged that the appellant’s speech pertained to their ordinary job duties and that it only amounted to an internal complaint relating to Dr. Lee-Barber’s performance. The Appeals Court concluded that the appellants spoke as employees on private matters and thus were not protected by the First Amendment. [p.25]
The Court first established that “[a] government employer may not demote or discharge a public employee in relation for speech protected by the First Amendment.” [p. 15] Even though a citizen who enters public service accepts certain limitations on freedom, he or she does not surrender his/her First Amendment rights. [p. 15] The Court also referenced a two-step inquiry established by the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006) which states that for a speech to be constitutionally protected the employee must have spoken: (1) as a citizen and (2) on a matter of public concern. If an employee meets Garcetti’s two-step inquiry the likelihood of a claim pursuant to the First Amendment arises. Then, the analysis of the Court becomes one of balance. However, if an “employee spoke as an employee and on matters of personal interest, the First Amendment is not implicated, and ‘the constitutional inquiry ends with no consideration of the Pickering test’.” [p. 18]
The appellants contended that their speech was not required by their job duties. The Court established that the appellants raised concerns regarding Dr. Lee-Barber’s performance and in their course of their ordinary job duties. [p. 28] Their intention was to correct “Dr. Lee-Barber’s alleged mismanagement, which interfered with Appellants’ ability to perform.” [p. 28] Moreover, that appellants’ speech “owes its existence to their professional responsibilities, and it ‘cannot reasonably be divorced from those responsibilities’.” [p. 29] Judge Wilson also argued that he did not agree with the notion that “speech regarding conduct that interferes with an employee’s job responsibilities is not itself ordinarily within the scope of the employee’s duties.” [p. 29] He added that the appellants had a duty to inform conduct that inhibited their job duties. [p. 29] The Court determined that the appellants spoke as employees, not as citizens, and for these reasons their Memorandum did not engage the First Amendment. [p. 30]
Regarding the second step of the inquiry (on a matter of public concern), the Court asserted that in accordance with the Garcetti test their analysis should have ended, as the first step was not met. However, the Court did consider if the appellants’ speech contained matters of public concern. Appellants argued that the “main thrust” of their Memorandum was the safety and well-being of students and client care. [p. 30] The Court established that speech concerning personal matters or grievances would not be protected pursuant to the First Amendment. [p. 31] The Court contended that the appellants’ speech “did not constitute speech on a matter of public concern.” [p. 32] The Memorandum focuses on Dr. Lee-Barber’s performance as a leader and her alleged mismanagement, as well as how her conduct affected them as employees. [p. 32] The Court determined that the memorandum is only directed to private concerns and that the public concerns it addresses are only incidental and not the primary focus. [p. 33] The Court added that “the ‘main thrust’ of the Memorandum’s content ‘took the form of a private employee grievance’.” [p. 35] The Court also submitted that the appellants made no attempt to publicly voice their concerns. [p. 35] For these reasons, their speech is not entitled First Amendment protection as the speech made by the appellants “was made by them as employees and not as citizens, and on matters related to their employment and not public concern.” [p. 36]
Judge Beverly B. Martin delivered the dissent. The judge first stated that she “believes the First Amendment affords more protection to public employees than the majority opinion allows.” [p. 37] She contended that the Memorandum was not within the ordinary job responsibilities of the appellants. Referencing the Supreme Court’s decision in Lane v. Franks, 570 U.S. __ (2013), the judge furthered that the appellants spoke of their own duties in an effort to express matters of public concern. [p. 41] Moreover, she stated that the health and safety concerns that the appellants spoke of in their Memorandum are not “merely personal gripes or employment-related grievances.” [p. 42] Judge Martin also argued that the appellants did not have a duty to inform higher management about the important issues they raised. [p. 43] She added that the Memorandum was beyond the scope of their ordinary responsibilities and for these reasons they spoke as citizens rather than employees. The appellants’ speech, according to Judge Martin, contained matters of public concern as they spoke of the quality of services and wanted to inform the public about the deterioration of the services provided by the Center. Martin determined that the Memorandum contained matters of private and public concern. The dissent also asserted that the First Amendment principles do not punish the fact that the appellants distributed their Memorandum internally. [p. 49] For these reasons, Judge Martin concluded that the appellants’ Memorandum was citizen speech on a matter of public concern. [p. 50]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Appeals Court’s decision contracts expression as it determines that a public employee’s speech must be made in a private citizen capacity. The speech cannot be part of ordinary job duties. The dissent stated that the First Amendment provides more protection to public employees than the majority opinion allowed in this case. The dissent also acknowledged that the employees did not have a duty to inform the alleged mismanagement of the Center. An important aspect of the decision is that it further limits a public employee’s speech and it remains to be seen how it affects other public employees that denounce activities in their respective workplaces.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is binding upon the jurisdiction of the Eleventh Circuit.
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