By: Loyd Willaford and Clive Pontusson
In Barone v. City of Springfield, a Community Service Officer from Oregon sued her Police Department for violating her free speech rights. Despite the fact that Thelma Barone had been hired to handle complaints of racial profiling by the department, she was fired for speaking out about issues of racial discrimination. The federal Court of Appeals ruled that a last chance agreement offered by her employer was too restrictive, because it did not allow her to share information about the Police Department with the general public.
Officer Barone’s job description was to handle complaints of racial profiling and racial discrimination, acting as a go between for the Springfield Police Department and the community. This meant that she was often put in the position of addressing criticisms of the police department. Shortly after speaking at a public meeting about issues with the department, Barone was investigated and ultimately fired. Prior to being fired, Barone was given the opportunity to sign a “last chance agreement” that would have prevented her from “publicly criticizing or ridiculing the department.” Barone refused to sign this agreement, and sued the Police Department. Barone argued that the First Amendment protected her right to speak out about matters of concern to the public. She argued that the Police Department could not retaliate against her for exercising her right to free speech. She also argued that the Police Department could not restrain her speech before she made it by making her sign the last chance agreement.
The Police Department argued that Officer Barone was subject to exceptions to the right to free speech because she was a public employee. Government employees have a right to free speech as citizens, but this right is limited when they are speaking as representatives of the government. Like any employer, the government can place limits on what its employees say “on the job.” The Police Department claimed to have a strong interest in presenting the Department to the public in a good light, and that Officer Barone had not always done that in her past public comments. For the same reason, the Police Department argued that it had a right to restrict Officer Barone’s speech in the future, by requiring her to sign the last chance agreement.
The Court of Appeals agreed with the Police Department that Officer Barone’s speech was made as an employee and therefore was not protected by the First Amendment. The Court examined the facts of the situation to determine whether or not Barone was speaking in her “official capacity” or as a private citizen. It decided that:
Not only did Barone’s speech fall within the tasks she was paid to perform, but she spoke while clothed in official attire, while on the clock, and in a location she had access to by virtue of her position.
However, the Court also found that the last chance agreement the Police Department asked Barone to sign was far too broad: it would prevent her from saying anything critical of the Department, even things she had a protected right to say as a private citizen. When it came to restraining Officer Barone’s speech in the future the Court decided that the last chance agreement violated Barone’s constitutional rights: it was unlawful to ask her to surrender these rights in exchange for her job. The last chance agreement forbid “any” criticism of the City of Springfield. The Court determined that:
This language would sweep in any disagreement about the City’s services, employees or elected officials, including speech on topics or individuals that do not overlap with Barone.
Barone had a right as a citizen to speak about such matters, a right that a public employee does not “lose” when they are employed by the government.
As a result, the Police Department did not unlawfully retaliate against Barone, but it did unlawfully restrain her speech.
This case is a good illustration of how Courts handle First Amendment claims. Because Barone’s claim regarding retaliation arose from speech she gave while acting in her official capacity as a police spokesperson, the Court found that the speech was not protected by the First Amendment. This decision in consistent with the federal courts’ deference to public employer’s in regulating on-duty speech. However, the Court found that City’s insistence that Barone sign a last chance agreement containing a broad ban on speech that was negative about the City was unconstitutional. This was because the plain language of the agreement did not limit the ban on negative speech to on-duty speech nor was the ban limited to topics directly related to Barone’s position. Thus, the Court found that the City’s interest in maintaining workplace order was not outweighed by Barone’s free speech rights.
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