United States District Court, M.D. Florida, Fort Myers Division
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss (Doc. 14) and
Plaintiff's response in opposition (Doc. 17). This is a
First Amendment retaliation case involving a public employee.
(Doc. 1). Plaintiff claims a First Amendment violation
because Defendant compelled her either to speak on private
matters or be fired. (Doc. 1 at 3-5). In the Motion papers,
the parties dispute which legal standard applies. So the
Court requests supplemental briefing on the issue.
touchstone case involving public employees' First
Amendment rights is Pickering v. Bd. of Educ. of Twp.
High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563
(1968). Pickering, and its progeny, laid out a test
that plaintiffs must satisfy to enjoy First Amendment
protection. In part, an employee's speech must be
“as a citizen on a matter of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)
(citing Pickering, 391 U.S. at 568). If not,
“the employee has no First Amendment cause of action
based on his or her employer's reaction to the
speech.” Id. (citing Connick v.
Myers, 461 U.S. 138, 147 (1983)). In the past, some
courts applied Pickering to situations where-like
here-a public employee was fired for refusing to speak.
Lewis v. Cowen, 165 F.3d 154, 161-64 (2d Cir. 1999);
Phillips v. Ingham Cty, 371 F.Supp.2d 918, 928-29
(W.D. Mich. 2005); Coover v. Saucon Valley Sch.
Dist., 955 F.Supp. 392, 399-401 (E.D. Pa. 1997); see
also Berry v. Bailey, 726 F.2d 670, 673-76 (11th Cir.
1984) (applying Pickering and holding that a public
employee's refusal to follow an order was unprotected);
Sykes v. McDowell, 786 F.2d 1098, 1103-05 (11th Cir.
1986) (noting that Pickering provides some
constraint on First Amendment jurisprudence).
Supreme Court just called Pickering into question as
it relates to compelled speech. Janus v. Am. Fed'n of
State, Cty., and Mun. Emps., Council 31, 138 S.Ct. 2448,
2473 (2018) (“[T]he Pickering framework fits
much less well where the government compels speech.”).
In doing so, the Court said, “[i]f Pickering
applies at all to compelled speech-a question that we do not
decide-it would certainly require adjustment in that
context.” Id.Because the speech at issue here
was compelled, Janus raises the question of whether
Pickering applies and, if so, how it must be
modified to this context. Id.
Defendant's Motion only addresses Pickering
without discussion of the development described above. And
Plaintiff claims Pickering does not apply at all.
While Plaintiff cites a compelled speech standard,
Cressman v. Thompson, 798 F.3d 938 (10th Cir. 2015),
that was not a public employment case so the
Pickering framework was not at issue. See
also Doe 1 v. Marshall, 367 F.Supp.3d 1310,
1324-26 (M.D. Ala. 2019). For those reasons, the Court
requests Defendant to file a supplemental brief on the
matter, to which Plaintiff may respond.
it is now
Defendant shall FILE a supplemental brief on
the issues identified above on or before September 4,
2019. Afterward, Plaintiff shall file a response to
Defendant's supplemental brief on or before
September 11, 2019.
Court will defer ruling on Defendant's
Motion to Dismiss (Doc. 14).
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