Contrary to popular belief, the First Amendment doesn’t protect your right to say whatever you want, whenever you want, in any context. We won’t get into a constitutional lesson here, but suffice it to say that there’s a difference between protected and unprotected speech. For instance, you might be able to air your concerns about a municipal workplace policy and be protected under the First Amendment. However, attacking the person in charge of that policy with a few colorful curse words and some threats thrown in for good measure? Good luck convincing a court that your speech is protected.
CMM’s latest municipal liability success involved just that, the plaintiff being a disgruntled former animal shelter volunteer who brought an action against the Town (CMM’s client), on the basis that his First Amendment rights were violated when he was dismissed.
As a volunteer, the plaintiff had signed a Volunteer Policy and Procedure Manual that he was required to adhere to. But throughout his time at the shelter, the Town received several complaints about the plaintiff and conducted at least six investigations into his actions. These investigations ranged from allegations of possible harassment, multiple Workplace Violence Incident Report Forms, and disturbing text messages and social media posts. The plaintiff made multiple threats on Facebook using profanity aimed at employees, wrote offensive comments about Town investigators in large letters on the side of his truck, and shouted inside the shelter that he wished an employee would have a heart attack.
Following three years of investigations into these actions and the continued harassment of shelter and Town employees, a Town investigator recommended terminating the plaintiff as a volunteer. The plaintiff then filed suit against the Town, contending that his termination was retaliation for speaking publicly on shelter misconduct.
To prevail, the plaintiff needed to establish that, among other things, (1) the speech was protected by the First Amendment, and (2) there was a causal connection between the protected speech and the Town’s adverse action against him.
CMM’s team, led by Senior Partner and Chair of our Municipal Liability practice group Scott Middleton, along with Associate Richard DeMaio, moved for summary judgment (essentially, a request that the Court dismiss the case because there are no facts at issue).
Protected speech is speech in which the plaintiff engaged as a citizen on a matter of public concern. While the court found that some of the plaintiff’s speech was protected, such as speaking at public meetings and writing letters to the newspaper about shelter conditions, other forms of speech such as sending private messages to shelter employees and shouting that he hoped an employee would have a heart attack were not protected.
After parsing through the complex facts, years of investigations, and dozens of instances of speech made by the plaintiff online and at the shelter, CMM’s team was able to show that the threatening speech made in text messages and at the shelter itself were not protected under the First Amendment as the plaintiff claimed.
Thanks to CMM’s work, the court granted the motion for summary judgment, noting that CMM had established that the Town had terminated the plaintiff as a volunteer because he harassed shelter employees and violated the terms of his volunteer agreement, not because he engaged in protected speech regarding the shelter’s treatment of the animals.
Visit our Municipal Liability page to read more about other successful cases.
