In Chrzanowski v. Bianchi, the Seventh Circuit considered the line between private speech of public employees on a matter of public concern, which is protected under the First Amendment, and speech made pursuant to a public employee’s professional duties, which is not protected.
The plaintiff was terminated from his position as an Assistant State’s Attorney after he testified pursuant to subpoenas before a grand jury and at trial regarding alleged wrongdoing by his employer, the McHenry County State’s Attorney. Specifically, his testimony involved allegations of improper interference by the State’s Attorney in one of the ASA’s cases. While the district court found that the ASA’s speech fell under his broad duties in the administration of justice and was thus not protected, the Seventh Circuit disagreed.
The Seventh Circuit explained that the determinative question is whether the speech is made as part of the employee’s typical work duties; in other words, whether it is his/her work product or part of the tasks the employer pays him/her to do. That the speech concerned the ASA’s employment did not mean that making it was part of his official responsibilities as a felony prosecutor. The court found that the ASA testifying about his employment was no different from a schoolteacher writing an editorial critical of the school board – both fall outside the employees’ duties of employment and are protected.
Further, the court emphasized that when a public employee testifies pursuant to a subpoena he/she is speaking as a citizen, and the public has a significant interest in witnesses giving truthful testimony. Finally, the government cannot tell its employees what to say in court.
The Seventh Circuit found that the State’s Attorney was not entitled to qualified immunity (qualified immunity shields public officials from liability for the violation of rights that are not clearly established at the time of the action) because the right of a public employee not to be retaliated against for truthful speech pursuant to a subpoena was clearly established. The district court, however, had previously found to the contrary. As exemplified by the differing opinions of the district court and the Seventh Circuit, the contours of the free speech rights of public employees can be challenging to define. Public employers should carefully consider any contemplated discipline related to the speech of an employee.