First Amendment Does Not Protect Internal Investigation Leaks

​The 4th U.S. Circuit Court of Appeals concluded that a sheriff department employee's conversation with his wife, who worked at a local news station, about an internal affairs investigation was not protected by the First Amendment.

On Oct. 20, 2013, York County Sheriff's Office (YCSO) detention officers restrained an inmate who died shortly thereafter. The plaintiff, who was employed as a master control specialist, was not at the facility when this incident occurred. Within hours, the South Carolina Law Enforcement Division (SLED), as well as YCSO Internal Affairs, began full investigations.

After conducting preliminary interviews, the SLED informed YCSO that the investigation "was still preliminary" but that investigators "didn't see anybody that had done anything wrong." Later that same day, the YCSO held a press conference during which the public information officer stated that all officers "did exactly what they were supposed to do last night." The plaintiff, who was watching the press conference, doubted this statement and decided to review the video-surveillance footage of the incident during his next shift.

In reviewing the footage, the plaintiff observed an officer strike a noncompliant inmate several times and other officers tase him until they were able to secure the inmate. Based only on his review, the plaintiff believed that the YCSO's representation at the press conference was inaccurate but made no effort to discuss the matter with the YCSO or anyone else at that time. Instead, the plaintiff told his wife about his impression of what he observed. She then shared the information with an investigative reporter.

The reporter contacted the YCSO with a request for the surveillance footage and inquired whether it depicted an officer striking the inmate multiple times in the head. Concerned about the reporter's inquiry, the sheriff initiated an internal investigation to uncover the source of the unauthorized disclosure. The plaintiff confessed to investigators that he had shared the confidential details of the incident with his wife and acknowledged that he had violated YCSO's policies. The YCSO informed the plaintiff that he could either resign or be fired, and he chose the latter.

The plaintiff asserted that his interest in disclosing internal information about the incident outweighed the sheriff's reasonable apprehension of disruption within the YCSO. To determine if a public employee has a First Amendment claim for retaliatory discharge, courts consider whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; whether the employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public; and whether the employee's speech was a substantial factor in the employee's termination decision.

The court explained that it "must take into account the context of the employee's speech and the extent to which it disrupts the operation and mission of the institution." In measuring disruption, courts "do not require the public employer to prove that the employee's speech actually disrupted efficiency, but only that an adverse effect was 'reasonably to be apprehended.' "

The detrimental effects of disclosing information from an ongoing investigation are "self-evident," the court stated, and have "particular resonance when law enforcement agencies are involved." The 4th Circuit afforded the plaintiff's interest in conveying the speech in question "diminished weight" because it was not "a particularly informed opinion" since he had no firsthand knowledge of the incident and did not speak to the officers involved before disclosing unauthorized information.

Most critically, the court emphasized, the plaintiff made no effort to direct his concerns up the YCSO chain of command or any other law enforcement agency before sharing confidential details with his wife. These facts suggested to the 4th Circuit that the plaintiff was more concerned with getting the sheriff and other officers "in trouble than ensuring an appropriate departmental response."

In addition, the court found the record revealed a reasonable apprehension of disruption in the YCSO, particularly considering the plaintiff's speech "propelled a frenzy of media attention" that "ballooned into a separate internal investigation into the unauthorized disclosure, undercutting manpower and resources to continue the ongoing investigation into the incident."

Billioni v. Sheriff, 4th Cir., No. 20-1420 (May 25, 2021), rehearing en banc denied (June 23, 2021).

Professional Pointer: Employees can be held more easily accountable to policies that are in writing and are well-distributed and accessible.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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