First Amendment Protects Against Viewpoint Discrimination

A sheriff failed to demonstrate that his interest in maintaining an efficient workplace outweighed a sergeant's free-speech interest in voicing political support for the sheriff's re-election opponent.

In the fall of 2017, the sheriff of the El Paso County Sheriff's Office (EPSO) launched his campaign for re-election. The plaintiff, a patrol sergeant, actively supported the sheriff's opponent. In 2018, another sergeant complained that the plaintiff allegedly made negative statements about EPSO administration while on duty and had asked her who she and her husband were supporting in the election for sheriff. An internal investigation found the sergeant's allegations proven by a preponderance of the evidence.

Shortly after, the plaintiff gave an interview to a local newspaper about alleged misconduct at EPSO. On July 11, the newspaper published an article about misconduct at EPSO, including:

• Details of sexual harassment allegations against a lieutenant.
• The plaintiff's internal complaint regarding sexual harassment.
• Retaliation complaints filed by the plaintiff.
• The plaintiff's claims that he was falsely accused of on-duty political activity while others engaged in on-duty political activity without consequence.

EPSO conducted another investigation into the plaintiff's possible violation of confidentiality in disclosing details of internal EPSO management to the newspaper. The plaintiff was interviewed on July 13 about the article as part of that internal investigation. After the interview, the plaintiff was given a notice of termination.

The plaintiff alleged retaliation for protected speech in support of the sheriff's opponent.

The Supreme Court has provided a five-part test to evaluate First Amendment retaliation claims brought by public employees against their employers:

• Whether the speech was made in line with an employee's official duties.
• Whether the speech was on a matter of public concern.
• Whether the government's interests, as an employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free-speech interests.
• Whether the protected speech was a motivating factor in the adverse employment action.
• Whether the defendant would have reached the same employment decision in the absence of the protected conduct.

The sheriff argued that the plaintiff could not satisfy the third element.

The 10th Circuit concluded that the sheriff's interests in the internal operations of EPSO did not outweigh the plaintiff's free-speech interests. First, the court noted that the tacit permission given to employees to voice political support for the sheriff while on duty "severely undermined his purported interest in firing the plaintiff to avoid disruption at EPSO based on his political speech."

The prevalence of political speech in favor of the sheriff, the court commented, showed that firing the plaintiff for on-duty political speech "was not based on a reasonable prediction that the speech would 'interfere with the regular operation' of EPSO."

In addition, the court explained that as a rank-and-file patrol sergeant, the plaintiff's employment relationship with EPSO leadership was not "the kind of close working relationship for which it can persuasively be claimed that personal loyalty and confidence are necessary to its proper functioning." Finally, the 10th Circuit observed that there was no evidence showing that the plaintiff's political speech threatened any of EPSO's work or compromised morale.

The sheriff further contended that he fired the plaintiff for violating a neutral EPSO policy prohibiting on-duty political activity. However, the court stated that, even accepting that EPSO had a neutral policy purporting to prohibit on-duty political activity that complied with constitutional standards, the sheriff did not follow it because he did not apply it neutrally.

The court commented that rather than applying a speech-restriction policy neutrally, the sheriff engaged in viewpoint discrimination—"an egregious form of content discrimination that occurs when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction" and that violates the core of the First Amendment.

Duda v. Elder, 10th Cir., No. 20-1416 (July 27, 2021).

Professional Pointer: Although private employers' policies may not implicate the First Amendment, there are other laws that limit a private employer's ability to restrict employee speech, such as the National Labor Relations Act.

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