By Anthony Rice
In Pubentz, an FBI linguist’s First Amendment retaliation claim failed because the linguist’s comments, made during a work presentation at the Chicago FBI Office, were not made as a citizen on a matter of public concern. Moreover, even if the speech was made as a citizen and on a matter of public concern, the court held the government’s interest would outweigh the linguist’s in this scenario.
The FBI arranged for a voluntary training event and invited a Palestinian speaker to come to the Chicago FBI Office to discuss the conflict involving Israel and Hamas in the Gaza Strip. During the course of the presentation, an FBI linguist, specializing in interpreting Hebrew and fluent in Arabic, challenged the speaker on several of his points. She stated that the presentation was “pure propaganda” and “not based on fact.” The FBI linguist later received poor performance reviews on professionalism and was not recommended for a promotion. She believed these reviews were the result of retaliation against her for the comments she made during the presentation.
To be successful on a First Amendment retaliation claim, the linguist must prove her speech was not made pursuant to her official public duties. The Supreme Court has established specific requirements to meet this burden, and this court found, the linguist failed to meet two of them. First, the court must determine whether the linguist spoke as a citizen on a matter of public concern. The court found the linguist’s
confrontation had the potential to give the speaker a negative impression of the FBI as a whole, as opposed to the perspective of one boisterous linguist. Accordingly, the Court finds that [her] verbal confrontation with the presenter at the FBI presentation was not a matter of public concern and the FBI had a vested interest in limiting the actions.
The court held that the linguist failed to satisfy the second requirement for a First Amendment retaliation claim, as well. Under the second requirement the court must balance the First Amendment interests of the linguist against the interests of the FBI as an employer. In doing so, the court held that
[e]ven if we were persuaded that [the] speech during the presentation was a matter of public concern, the FBI has an interest in regulating the way presentations are conducted. The imposition of restraints in employment are justified by the consensual nature of the employment relationship and by the unique nature of the government’s interest.
