County Attorney’s Media Comments Not Protected Speech

By Whitney R. Brown Apr 12, 2017

A county attorney was acting in the scope of her job duties when she answered a reporter's question about the settlement of a case she was handling. Accordingly, she was not entitled to First Amendment protection, according to the 9th U.S. Circuit Court of Appeals.

The First Amendment grants some public employees protection against negative employment actions based on speech regarding matters of public concern made while acting as private citizens.

The plaintiff, Maria Brandon, worked for decades as a civil litigation attorney for the Maricopa County, Ariz., Attorney's Office (MCAO). She left the MCAO in 2009 to work directly for the county in a special litigation office. While she worked directly for the county, someone leaked a confidential memo that Brandon had written regarding the settlement of a brutality case against the sheriff's department. When a reporter asked Brandon about the leaked memo, she refused to comment on the memo directly but said, "I don't know why they did what they did, and I'm sure they have their reasons." The reporter published the comment in an article suggesting that the county had substantially increased a settlement offer to avoid having certain key officers testify.

Brandon returned to the MCAO in 2011 under an employment contract. Two risk managers instructed the MCAO not to assign Brandon to certain cases because they believed her comments to the press showed poor judgment. Brandon was terminated shortly thereafter.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

Brandon sued, contending that her statement to the reporter constituted private speech and was protected by the First Amendment. A jury found in Brandon's favor on that claim and awarded her nominal damages of $1.

The county appealed the jury's decision, arguing that Brandon had been acting in the scope of her official duties when she spoke to the reporter and thus her comment was not protected by the First Amendment.

The determination of whether or not Brandon was acting as a public employee (no First Amendment protection) or a private citizen (First Amendment protection) when she spoke to the reporter depended on a practical factual inquiry examining:

  • The employee's job duties and chain of command. For example, if it is the employee's job to make a speech or give a report to a superior, then that speech or report is not the protected act of a private citizen.
  • The subject matter of the speech. For example, if a police officer completes a report on an arrest, that is not protected speech, but if a police officer expresses a generalized concern about police brutality, that is potentially protected communication.
  • Whether the employee is acting under orders. An employee who is directly contradicting a superior's orders is very likely to be acting as a private citizen.

The 9th Circuit found that the trial court failed to undertake this practical factual inquiry. To the first question, the court found that speaking to the media in this case was part of Brandon's job duties. As an attorney, she had multiple ethical obligations that circumscribed what she was permitted to say as well as specific ethics rules to follow for dealing with the media on behalf of her client.

As for the second question, the court noted that Brandon's comment had to do with a lack of communication between her and her client (the county) and did not contain a direct accusation of wrongdoing.

To the third question, the court found that Brandon had not disobeyed any policies or orders when speaking to the reporter. Thus, the court concluded, when Brandon spoke to the reporter, she did so as a public employee and specifically as the county's lawyer handling the exact case the reporter was asking about. As such, she was not entitled to protection under the First Amendment.

Brandon v. Maricopa County, 9th Cir., No. 14-16910 (Feb. 23, 2017).

Professional Pointer: The First Amendment offers no protection to employees of private entities. Its protection to employees of public entities is limited by several rules, including that if the employee's speech is to be protected, it must be communicated in that employee's capacity as a private citizen.

Whitney R. Brown is an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., the Worklaw® Network member firm in Birmingham, Ala.

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