Content, Form, and Context - the Eighth Circuit Misapplies the Connick Test in Examining the First Amendment Rights of a Public Employee in Buazard v. Meridith

• Publication year: 2022

33 Creighton L. Rev. 417. CONTENT, FORM, AND CONTEXT - THE EIGHTH CIRCUIT MISAPPLIES THE CONNICK TEST IN EXAMINING THE FIRST AMENDMENT RIGHTS OF A PUBLIC EMPLOYEE IN BUAZARD V. MERIDITH

Creighton Law Review

Vol. 33

INTRODUCTION

Prior to Pickering v. Board of Education of Township High School District 205,(fn1) public employees did not have a cause of action when their First Amendment rights were violated during the course of their employment.(fn2) In Pickering, the United States Supreme Court issued one of its first opinions on First Amendment rights for public employees.(fn3) The Supreme Court ruled that in order for a public employee's speech to be protected, courts need to balance the interest of the employee in commenting on "matters of public concern" with the interest of the government "in promoting the efficiency of the public services it performs through its employees."(fn4) Fifteen years later, the Supreme Court provided further guidance in Connick v. Myers(fn5) when it held that in determining whether a public employee's speech constitutes a matter of public concern, a court must examine the "content, form, and context" of the public employee's statement.(fn6)

Recently, in Buazard v. Meridith,(fn7) the United States Court of Appeals for the Eighth Circuit dealt with a public employee's speech regarding potential municipal corruption.(fn8) The Eighth Circuit held that Charles Buazard's speech did "not address a matter of public concern."(fn9) Buazard was a police officer who, upon the request of a superior, submitted a report regarding an incident of police officer misconduct.(fn10) Later, despite the request of his superiors, Buazard refused to alter the report as he believed the report to be truthful and he believed that his superiors were attempting to avoid a civil suit.(fn11) The Eighth Circuit ruled that Buazard's expression did "not address a matter of public concern" and reasoned that since Buazard wrote the report within "his role as a police officer," he could not have been speaking as a concerned citizen.(fn12)

This Note will first review the facts and holding of Buazard.(fn13) Next, this Note will examine the previous cases in which the Supreme Court, the Eighth Circuit, and other courts of appeals have determined what is required for a public employee's speech to constitute a matter of public concern.(fn14) Finally, this Note will scrutinize the Eighth Circuit's decision in Buazard and will criticize the Eighth Circuit for narrowly interpreting case precedent in analyzing: (1) the content of Buazard's speech and finding that his speech did not touch a matter of public concern; (2) the form of Buazard's speech and finding that not expressing the speech in public prevented the speech from addressing a matter of public concern; and (3) the context of Buazard's speech and failing to sufficiently scrutinize such context.(fn15) Finally, this note will criticize the Eighth Circuit for leaving the law in such a state as to allow public employers to threaten public employees with dismissal in order to inhibit speech revealing municipal corruption.(fn16)

FACTS AND HOLDING

Charles Buazard was hired as a patrol officer for the City of Pocahontas, Arkansas in 1984 and was promoted to the position of assistant chief of police in 1989.(fn17) On August 10, 1994, two Pocahontas police officers were fired for mistreating a prisoner.(fn18) One of the police officers plotted with two prisoners to provoke the second police officer into macing a third prisoner.(fn19) Despite the fact that the officer who used the mace was not aware that she had been set up, both officers were terminated.(fn20)

Although Buazard was not present during the incident, he did discuss the occurrence with the two officers and witnesses to the incident.(fn21) In addition, Buazard was present at the time the officers were fired.(fn22) After the firing, Chief of Police Charles Meridith requested that Buazard prepare statements regarding his conversations with the fired police officers and the witnesses.(fn23) The report Buazard prepared discussed the conversations, as well as the actual firing of the two police officers.(fn24)

After the firings, Buazard joined the Mayor of Pocahontas and Meridith at a lunch.(fn25) Over the course of the lunch, the mayor repeatedly shared his opinion that the city would not be able to afford a wrongful termination lawsuit by the fired police officers.(fn26) Not long after the lunch, Meridith spoke with Buazard and informed him that some of the statements in his report were false and needed to be changed.(fn27) Buazard, connecting Meridith's command to alter the report with the mayor's previously expressed legal concerns, maintained the truthfulness of his statements and refused to change the report for the purpose of insulating the city from a wrongful termination suit.(fn28)

Following this incident, Buazard was demoted from his position of assistant chief to patrolman.(fn29) Buazard believed that he was ostracized by Meridith and the mayor, that he did not receive the same opportunities for training as the other police officers, and that he was assigned menial work.(fn30) Buazard alleged that these events occurred in retaliation for his refusing to alter his report.(fn31) However, Meridith and the mayor maintained that Buazard was demoted due to poor job performance.(fn32) Following his demotion, Buazard brought a 42 U.S.C. § 1983 action against Meridith, the Mayor and the City of Pocahontas in the United States District Court for the Eastern District of Arkansas.(fn33) Buazard alleged that his right to free speech under the First Amendment was violated when Meridith and the mayor retaliated against him after he exercised his right to free speech and refused to alter his report.(fn34)

Before the United States District Court for the Eastern District of Arkansas, Meridith moved for summary judgment arguing that Buazard's right to free speech had not been violated.(fn35) The district court granted Meridith's motion for summary judgment and concluded that Buazard's speech was "not a matter of public concern" and, therefore, was unprotected by the First Amendment.(fn36)

Buazard appealed the decision of the district court to the United States Court of Appeals for the Eighth Circuit, arguing that his speech did address a matter of public concern, and consequently, was protected under the First Amendment.(fn37) The Eighth Circuit affirmed the district court's decision to grant summary judgment in favor of Meridith and the City of Pocahontas.(fn38) In reaching their decision, the Eighth Circuit examined the "content, form, and context" of Buazard's speech.(fn39) The Eighth Circuit first noted that "when a public employee's speech is purely job-related, that speech will not be deemed a matter of public concern."(fn40) Conversely, the court recognized that a public employee's speech that relates to a political, social, or other community concern does address a matter of public concern.(fn41) The Eighth Circuit also commented that the context in which a public employee's speech occurs is relevant as well.(fn42) The Eighth Circuit then found that Buazard's statements were written at the request of his superior.(fn43) Although the Eighth Circuit conceded that the circumstances surrounding the firing were most likely a matter of public concern, the fact that Buazard's report was internal in nature and created at the request of Buazard's supervisor led the Eighth Circuit to rule that Buazard's speech was not a matter of public concern.(fn44)

Circuit Judge Gerald Heaney dissented, stating that "I cannot join in the conclusion that the First Amendment does not protect public employees from being forced to choose between falsifying a report or being terminated."(fn45) The dissent went on to add that "[t]he line of decisions limiting First Amendment protections where speech is of a purely job-related nature should not be expanded to foreclose the claim of a public official who refused to be a party to municipal corruption."(fn46) The dissent determined that, given the context in which Buazard's speech occurred, Buazard's speech was not "purely job-related."(fn47) The dissent characterized the context surrounding Buazard's speech as a refusal to file a false report in the face of a political cover-up.(fn48) The dissent noted that "opposition to a political cover-up is almost by definition public-minded."(fn49) Thus, the dissent concluded that Buazard's refusal to alter his report could not have been "purely job-related."(fn50)

BACKGROUND

According to the First Amendment of the United States Constitution, "Congress shall make no law . . . abridging the freedom of speech."(fn51) Although the Supreme Court has held that speech addressing public issues stands on the "highest rung of the hierarchy of First Amendment values," it has not always been that way for public employees.(fn52) In 1892, Justice Oliver Wendel Holmes, presiding over the Supreme Judicial Court of Massachusetts, noted that "[a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."(fn53) This changed in 1968 when Justice Thurgood Marshall, writing for the United States Supreme Court in Pickering v. Board of Education of Township High School District 205,(fn54) declared that "statements by public officials on matters of public concern...