Constitutional Civil Rights - John Sanchez

• Publication year: 2002

Constitutional Civil Rightsby John Sanchez^*

I. Introduction

The 2001 survey period turned out to be an interesting year for
constitutional civil rights in the Eleventh Circuit. True to form,
virtually all of the cases addressed high profile issues arising under the
First Amendment. Four cases applied the balancing test announced in
Pickering v. Board of Education¹ for assessing public employee speech.
One case dealt with a public employee's right to procedural due process
after he was stigmatized by his employer. One case dealt with a prior
restraint. One case explored the difference between speech and conduct.
One case dealt with First Amendment access to traditional public fora.
Two cases dealt with zoning ordinances that regulate adult businesses.
One case addressed freedom of association. Two cases dealt with
regulating campaign speech. Finally, two cases dealt with religion.

II. First Amendment

A. Free Speech

1. Public Employee Speech. In Anderson v. Burke County,² the
Eleventh Circuit employed the Pickering v. Board of Education³
balancing test to decide whether a public employee, who was placed on
probation for one year and demoted for exercising his First Amendment
rights, had proved his case.⁴ Reversing the district court, the Eleventh
Circuit ruled that the public employer was entitled to qualified immunity when the applicable law had not already been clearly
established.⁵

Plaintiff, a captain with the county emergency management agency
and president of a firefighters and rescue service employees union,
distributed a questionnaire to candidates for political office. As a
consequence, plaintiff was placed on probation for one year and demoted.
After the district court granted the individual defendants qualified
immunity on the freedom of association claim but denied it on the
freedom of speech claim, defendants appealed to the Eleventh Circuit.⁶
The court set out the four parts of the test for weighing First Amend-
ment retaliation claims: (1) whether the public employee's speech
touched on a matter of public concern; (2) if so, whether the employee's
First Amendment right outweighed the employer's interest in running
a public workplace; (3) whether the employee's speech played a
substantial part in the employer's decision to discipline the employee;
and (4) if the employee establishes the preceding factors, whether the
employer proved "by a preponderance of the evidence, that 'it would have
reached the same decision . . . even in the absence of the protected con-
duct.'"⁷

The Eleventh Circuit determined that some of the questions on the
questionnaire touched on a matter of public concern, even though it
appeared the questions were used to complain about being overworked
and underpaid.⁸ Turning to the second part of the test, the court
concluded that the Pickering balancing tipped in defendant's favor.⁹
The court stressed the following points: (1) a public employer need not
wait for disruption or disturbance to occur before acting; (2) plaintiff
limited the questionnaire to a small audience, which weighs against
protected speech; and (3) a public employer's interest in regulating
speech is more pronounced when paramilitary organizations are
involved.¹⁰ The court did not address the third and fourth parts of the
test, concluding instead that even if it were mistaken on the merits, the
individual defendants were nonetheless entitled to qualified immun-
ity.¹¹

In Chesser u. Sparks,¹² the Eleventh Circuit ruled that the public
employer was entitled to qualified immunity on the public employee's
Sec. 1983 claim, alleging her employer retaliated against her for exercising
her First Amendment rights.¹³ Reversing the district court, the
Eleventh Circuit ruled that the public employer was entitled to qualified
immunity when the employee failed to allege the violation of a clearly
established right.¹⁴

Plaintiff alleged defendant retaliated against her after she authorized
overtime wages paid to sheriff's department employees in violation of her
supervisor's express instructions.¹⁵ Applying the four-part First
Amendment retaliation test, the Eleventh Circuit addressed whether
plaintiff's speech touched on a matter of public concern.¹⁶ After
examining the content, form, and context of plaintiff's speech, the court
concluded that it was not of public concern.¹⁷ While plaintiff's speech
"may not have been 'only of personal interest,'" she was merely speaking
as an employee when she told her supervisor that the County could not
lawfully refuse to pay overtime wages.¹⁸ Concluding also that plain-
tiff's First Amendment rights were outweighed in the second part of the
test by the County's interests, the court saw no reason to examine the
third and fourth parts of the test.¹⁹ Here, the supervisor may reason-
ably have believed that plaintiff was being insubordinate and disruptive
and so was justified in discharging her.²⁰ The court concluded that
plaintiff's First Amendment retaliation claim had no merit.²¹

Plaintiff also alleged that she was discharged in part because of her
association with her then-husband, a bitter enemy of her supervisor.²²
To prevail on this claim, plaintiff had to show that she had a constitu-
tional right and that she suffered adverse employment action for
exercising the right. If so, then the court would apply the Pickering
balancing test to see whether the adverse employment action was
permissible.²³ While plaintiff satisfied the two elements, the court
concluded that her employer had an overriding interest in having employees who are not insubordinate.²⁴ The court reversed the decision
of the district court denying the public employer's qualified immunity on
plaintiff's claims.²⁵

In Mason v. Village of El Portal,²⁶ the Eleventh Circuit reviewed a
village council's vote not to reappoint a white male police chief who
alleged that he was retaliated against for exercising his First Amend-
ment rights and that he was a victim of racial discrimination.²⁷ The
court affirmed the district court's grant of summary judgment to El
Portel, concluding in part that the police chief's comments about El
Portel's alleged focus on race in hiring did not figure substantially in his
nonreappointment.²⁸ Moreover, the court affirmed the dismissal of
plaintiff's other civil rights claims.²⁹

Plaintiff, a chief of police, alleged that he was not reappointed in
retaliation for speaking out at El Portel's public safety commission
meeting against what he claimed to be the Commission's undue
emphasis on gender and race in discussing the replacement of a black
police officer who had resigned.³⁰ Applying the four-part First Amend-
ment retaliation test, the Eleventh Circuit addressed only the third part
of the test: whether the employee's speech played a substantial part in
the employer's decision, in this case, not to reappoint him.³¹ Because
there was no evidence that two of the three council members who voted
not to reappoint plaintiff even knew of his controversial statements
made at the Commission's meeting, the court could not conclude that all
three council members' votes not to reappoint plaintiff stemmed from
those statements.³²

On plaintiff's Sec. 1983 claim of racial discrimination, the district court
concluded that plaintiff made out a prima facie case of racial discrimina-
tion under the McDonnell Douglas Corp. v. Green³³ test. Turning to the
legitimate nondiscriminatory reasons offered by the three El Portel
council members, the trial court concluded and the Eleventh Circuit
affirmed that there existed a triable issue of fact whether one council
member's reasons were pretextual but that the other two council members' legitimate reasons were credible.³⁴ For this reason, the
Eleventh Circuit agreed with the district court that "the alleged racially
discriminatory motive of only one member of a three-member majority
of a five-member council" does not give rise to municipal liability.³⁵

Plaintiff also alleged that the three council members who voted
against him conspired to violate his civil rights.³⁶ For starters, the
Eleventh Circuit found no abuse of discretion in the district court's
refusal to allow plaintiff to change this claim from Sec. 1985(2) to one
under Sec. 1985(3).³⁷ On the merits, the Eleventh Circuit agreed with the
district court that plaintiff's Sec. 1985(2) claim fell short on two grounds:
(1) plaintiff failed to allege that the three defendants interfered with the
'"due course of justice in any State or Territory;'"³⁸ and (2) plaintiff was
unable to show that an invidiously discriminatory racial animus
accounted for the decision not to reappoint him.³⁹ Absent conspiracy,
no Sec. 1985(2) claim can prevail.

In McKinley v. Kaplan⁴⁰ the Eleventh Circuit reviewed the removal
of an appointed member of a county advisory board who alleged that she
was removed in retaliation for exercising her First Amendment rights.⁴¹
The court affirmed the district court's grant of summary judgment to the
defendant, concluding that plaintiff's removal from her at-will appointed
position due to her criticism of county policy did not amount to a
violation of her free speech rights under the First Amendment.⁴²

Plaintiff served as a voluntary, unpaid member of the county's film
board. The commissioner who appointed plaintiff was well known for his
anti-Castro views of Cuba. When it turned out that an organization that
planned to hold a Latin music conference in Miami Beach was doing
business with Cuba, county commissioners withdrew public funding for
the event. In response, plaintiff publicly criticized the Commission's
action. Upon reading plaintiff's statements, the commissioner who
appointed her convinced the Commission to remove plaintiff.⁴³
Applying the four-part First Amendment retaliation test, the Eleventh
Circuit assumed that plaintiff's speech touched on a matter of public
concern, and that the county removed plaintiff for her statement, and so it only addressed the balancing part of the Pickering test.⁴⁴ The court
concluded that plaintiff's First Amendment right was outweighed by the
county's interests.⁴⁵ The court pointed out...