First Amendment protection for statements to media?
Last month, the Ninth Circuit Court of Appeals decided whether the First Amendment protected an attorney when she spoke to a reporter about a case she worked on. If protected, a jury verdict that Maricopa County’s termination of her was retaliatory would be affirmed.
In this case, Brandon v. Maricopa County (9th Cir. Feb. 23, 2017, No. 14-16910) 2017 U.S. App. LEXIS 3259, Ms. Brandon was working as an attorney representing the county when she spoke with an Arizona Republic reporter about a lawsuit alleging the sheriff’s department acted with brutality towards protesters. In an article resulting from the interview, the newspaper suggested that the county made an overly generous settlement offer to prevent embarrassing certain county officials who might have been required to answer questions in depositions. The article quoted Ms. Brandon as saying: “I don’t know why they did what they did, and I’m sure they have their reasons.” Later, Ms. Brandon was terminated ostensibly because of an altercation she had with another staff member. Ms. Brandon sued the county for, among other claims, retaliation in violation of her First Amendment right to free speech.
After the jury found in Ms. Brandon’s favor, the county appealed. The Ninth Circuit began with a review of First Amendment employment retaliation law. Speech made by public employees in their official capacity (i.e., as part of their job duties) is not protected; speech made in their private capacity as a citizen is. The Ninth Circuit has developed three principles to help determine whether the speech is made as a public employee or a private citizen. First, if the employee speaks outside of the chain of command, it is unlikely that she is speaking as part of her job duties. Second, if the substance of the speech is a routine report as part of normal department procedure about a particular incident, the speech is typically within the employee’s job duties. But if an employee raises concerns about corruption or systematic abuse, it is unlikely to be within the employee’s job duties. Third, if the employee speaks in contradiction to a supervisor’s orders, the speech often falls outside of the employee’s job duties.
The Ninth Circuit applied these principles to the case by first noting that Ms. Brandon had a broad fiduciary duty to her client, the county. Also, the rules of professional conduct recognize attorneys’ statements to media outlets to be part of their duties representing their clients. The court of appeals concluded that while Ms. Brandon spoke outside the chain of command, she was speaking as an attorney representing the county. It determined that Ms. Brandon did not raise any allegation of corruption or other serious misconduct, only a disagreement with the settlement authorized by the county. Finally, the Ninth Circuit found that Ms. Brandon’s communication with the newspaper did not violate any county policy.
Based on this analysis, the appellate court decided that Ms. Brandon’s speech was part of her official duties she owed to the county as its attorney. Consequently, the First Amendment did not protect her.