June 30, 2017 / 6:32 PM / in 22 days

Reminder from 3rd Circuit: Government lawyers’ free speech rights are restricted

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(Reuters) - If you are a lawyer working for a local, state or federal government, the First Amendment does not entitle you to say whatever you want about your employer, even if you are complaining about policies that affect the interests of justice.

The U.S. Supreme Court said as much in its 2006 decision in Garcetti v. Ceballos, which held that the First Amendment didn’t protect an assistant district attorney from workplace retaliation after he wrote a memo recommending the dismissal of a case involving a supposedly falsified police affidavit. The Supreme Court said that the assistant D.A. wrote his fateful memo as part of his official duties, and “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

On Thursday, the 3rd U.S. Circuit Court of Appeals considered a case in which a public defender stepped outside of his job description to complain to government officials about his office’s supposed policy of encouraging quick plea deals. U.S. District Judge Cynthia Rufe of Philadelphia had ruled the First Amendment applied to that speech. The 3rd Circuit panel – Judges Thomas Vanaskie, Cheryl Ann Krause and Richard Nygaard – said it did not. Under the balancing test for speech by public employees that the Supreme Court established in 1968’s Pickering v. Board of Education, the 3rd Circuit held in De Ritis v. McGarrigle, the public defender’s free speech rights were outweighed by his office’s countervailing interest in fulfilling its job.

The appellate panel’s decision, I should point out, was based on the particular facts of the De Ritis case. According to the 3rd Circuit opinion, written by Judge Krause, Joseph De Ritis was an assistant public defender in a 27-lawyer office in Delaware County, Pennsylvania. After 12 years of service, he was transferred from a trial team to the juvenile court unit. Upset at the transfer, De Ritis asked around to find out why he’d been moved. One current and one former lawyer from his office told him the public defender, Douglas Roger, moved De Ritis because his clients were not pleading guilty fast enough to satisfy the county’s chief judge.

Without asking his boss, Roger, if it was true, De Ritis repeated the rumor to judges, colleagues and prosecutors during off-the-record kibitzing in court, complaining that he was “being punished” for “taking too many cases to trial.”

De Ritis didn’t stop there, however. According to the 3rd Circuit opinion, after several months, he asked to move back to the trial team, where there was an opening. Roger declined the transfer. De Ritis then went to see the county solicitor, alleging that he’d been demoted because he refused to compromise the constitutional rights of his clients. De Ritis made the same allegations in a meeting with the chairman of the county council.

Soon after, De Ritis’ boss, Roger, heard from a judge that De Ritis was telling people he’d been punished for taking too many cases to trial. Roger was “astonished,” according to the 3rd Circuit, and confronted the assistant. De Ritis admitted he’d made such statements in court and to county officials. Roger fired him.

De Ritis sued Rogers and a slew of other officials, alleging illegal retaliation. Judge Rufe winnowed the case to his claims against Roger, whom she said was not immune from his former assistant’s suit because the First Amendment covered some of the statements De Ritis alleged he was fired for making.

The 3rd Circuit began its analysis with the observation that De Ritis’ speech as a public employee is only protected by the First Amendment to the extent he was speaking as a private citizen, not as an employee, on a matter of public concern – and, if he met that standard, only if his boss had no adequate justification for treating him differently from a member of the general public.

Under that test, the court easily disposed of De Ritis’ claim to First Amendment protection for his comments to judges and lawyers while he was in court. That kind of idle courtroom chatter, even though it was not part of actual proceedings, was “part and parcel of his ordinary job duties - not citizen speech,” the 3rd Circuit said. When De Ritis griped to other lawyers outside of court, the 3rd Circuit held, he may have been speaking as a private citizen, but he was only talking about his own employment, not a matter of public concern.

First Amendment protection for De Ritis’ reports to county officials was the hardest part of the 3rd Circuit’s examination. Because De Ritis couched his complaints to the officials in terms of protecting clients, he was addressing a public concern. The 3rd Circuit held in a footnote that as a matter of law, De Ritis’ allegations about an office policy of rushing clients into plea deals were recklessly false because he was spreading unconfirmed hearsay without ever asking Roger if it was true. But even “rumormongering,” to adopt the appellate court’s phrase, can be protected if De Ritis was acting as a whistleblower.

He wasn’t, according to the 3rd Circuit: He acted because he was upset about his own job, not because of concerns about clients of the public defender’s office. “Even as De Ritis urged (the county officials) to investigate alleged misconduct,” the opinion said, “De Ritis remained focused on how his perceived demotion ‘was hurting his career.’” The 3rd Circuit considered it notable that De Ritis waited more than six months to raise concerns after he first heard rumors that he was transferred for taking too many cases to trial. That delay gave less weight to his assertion of acting in the public interest.

On the other side of the scale, the 3rd Circuit said, De Ritis’ boss, Roger, had powerful reasons to fire an assistant spreading what the court called “‘fourth-person hearsay’ gleaned from after-work ‘gossip.’” De Ritis was disrupting the work of the office, the court said.

Applying the Supreme Court’s balancing test, the 3rd Circuit found no constitutional protection for De Ritis’ complaints to county officials. “Whatever First Amendment value De Ritis’ statements had, those statements gave Roger adequate justification to treat him differently from a member of the public,” the court ruled. “For that reason, we conclude at this third stage of the analysis that De Ritis’ speech was not protected, putting a hard stop to his First Amendment claim against Roger and entitling Roger to qualified immunity for his decision to fire De Ritis.”

My Reuters colleague Robert Iafolla reached out to both sides on Thursday but did not hear back.

The views expressed in this article are not those of Reuters News.

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