The Seventh Circuit’s Recent Opinions Upholding Dismissal of First Amendment Claims in Favor of the Government Entity’s Interest in Restricting Speech.

June 20, 2014

             In Volkman v. Ryker, 736 F.3d 1084 (7th Cir. 2013), the plaintiff, a correctional facility employee, filed suit pursuant to 42 U.S.C. § 1983 alleging several Illinois Department of Corrections (“IDOC”) employees retaliated against him for engaging in protected speech.  More specifically, Volkman alleged that he was given a written reprimand and five day suspension for speaking out to the Assistant State’s Attorney prosecuting a case against a fellow correctional facility employee for conduct in violation of IDOC rules and state law.  Despite stressing that he was only calling the prosecutor as a concerned member of the community, and not a correctional facility worker, the IDOC initiated an investigation against Volkman.

            The Seventh Circuit determined that Volkman had not met his burden of showing that the defendants’ conduct violated a “clearly established constitutional right” and granted the defendants qualified immunity.  Qualified immunity means that governmental actors are “shielded from liability for civil damages insofar as their conduct does not violate a clearly established statutory or constitutional right of which a reasonable person would have known.”  Under a two part inquiry, the Court must determine (1) whether the conduct violated a constitutional right and (2) whether the constitutional right was “clearly established” at the time of the alleged violation.

In this case, the Court found that the plaintiff plainly failed to prove his case.  Whether his speech was constitutionally protected depends not only on whether Volkman was speaking as a private citizen or as a public employee and whether he was speaking on a matter of public concern, but also on whether the IDOC has an adequate justification for treating Volkman differently from any other member of the general public.  The Court found that in this case, because the correctional facility is a law enforcement body, it has a great interest in protecting and maintaining public safety and order.  Under those circumstances, the Court determined that it should give considerable deference to the government employer’s assessment of the risks that the employee speech creates.  Here, Volkman was a supervisor speaking out against a disciplinary decision.  Naturally, the Court found, this undermines the chain of command and value and significance of the rules that were allegedly violated in the first place.  Because there is a great concern in maintaining order and respect in this context, the Court held the IDOC officials’ interests outweigh Volkman’s right to express himself.

The following day, the Seventh Circuit issued another First Amendment opinion upholding the governmental action in Craig v. Rich Township High School, 736 F.3d 1084 (7th Cir. 2013).  In that case, the plaintiff sued his employer, a school district, who terminated his employment after learning that he published a book of “adult relationship advice.”  Craig alleged that the school district improperly retailed against him for engaging in protected speech and filed suit pursuant to 42 U.S.C. § 1983.  The Court found the book contained a myriad of controversial and provocative advice topics, as well as Craig’s acknowledgement that the basis of his advice stems from his experience working as a school counsel and coach.  Like Volkman, the Court in Craig focused its opinion on the school district’s interests in ensuring the effective functioning of the school, noting that “interference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function.”

In this case, the Court found that Craig took deliberate steps to link his book with his work by referencing his position at the school, and that those students who learn of Craig’s book may then become reluctant to seek his advice and counseling.  Accordingly, the Court determined that the defendants reasonably predicted that Craig’s book would interfere with the learning environment at the school.  Thus, the school’s interests outweighed Craig’s interest in engaging in the speech.

Together, these cases support the proposition that despite the plaintiff’s individual interest in personal expression, the government’s interest in restricting that speech is overriding when the speech has the potential to disrupt the functioning of the organization that the government entity is entrusted with maintaining and protecting.