Johnson v. Multnomah County, Or., 93-35353

• Decision Date: 16 February 1995
• Docket Number: No. 93-35353,93-35353
• Citation: 48 F.3d 420
• Parties: 10 IER Cases 481 Jan JOHNSON, Plaintiff-Appellant, v. MULTNOMAH COUNTY, OREGON, a political subdivision of State of Oregon; William McKinley; Paul Yarborough, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 420

48 F.3d 420

10 IER Cases 481

Jan JOHNSON, Plaintiff-Appellant, v. MULTNOMAH COUNTY, OREGON, a political subdivision of State of Oregon; William McKinley; Paul Yarborough Defendants-Appellees.

No. 93-35353.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 13, 1994.

Decided Feb. 16, 1995.

Thad M. Guyer, Medford, OR, for plaintiff-appellant.

Steven J. Nemirow, Deputy County Counsel, Portland, OR, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before NORRIS, THOMPSON, and ALDISERT, ^* Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Jan Johnson appeals an adverse summary judgment on her claim for violation of her First Amendment right to free speech. Johnson claims that she was fired from her county job because of statements she made about her supervisor, statements she claims were protected by the First Amendment. The district court ruled that her speech was not protected, entered summary judgment against her Sec. 1983 claim and dismissed her pendent state law claims without prejudice. We review the summary judgement de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994).

I

Johnson was employed by Multnomah County as an administrative assistant in the Department of Environmental Services. ¹ Her job was to assist the manager of the county Expo Center and assist in the planning and supervision of the annual county fair. When her immediate supervisor left his position, Johnson applied for his job, but was not chosen to succeed him. Johnson believed herself to be better qualified than William McKinley, the man the County hired. Soon after McKinley was hired, Johnson began making statements to coworkers and others accusing McKinley of mismanagement and possible criminal conduct. ² According to the uncontroverted facts, Johnson made the following statements about McKinley:

1. He was part of a "good old boy network" and got his position as a result of undue influence.

2. He was awarding county contracts as paybacks for favors made by the "good old boy network."

3. He was involved in "restraint of trade" with a fair vendor.

4. He was allowing his friends to use the Expo for free.

5. He was not turning over to the County the proceeds from t-shirt sales at a Latoya Jackson concert at the Expo.

After McKinley became aware of these comments, Johnson was eventually fired.

II

In order to prevail in her First Amendment claim, Johnson must initially prove that her statements were constitutionally protected. Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir.1989). Johnson's speech cannot be protected unless it "substantially involved matters of public concern." McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983); accord Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). If she is able to show that the statements were of public concern, then the burden shifts to the County to show that its legitimate administrative interests outweigh the First Amendment interest in Johnson's freedom of speech. See Pickering v. Bd. of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Hyland v. Wonder, 972 F.2d 1129, 1139 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2337, 124 L.Ed.2d 248 (1993). In this case, the district court did not reach the Pickering balancing test, but instead granted the County summary judgment after holding that none of Johnson's statements involved a matter of public concern.

Speech involves a matter of public concern when it can fairly be considered to relate to "any matter of political, social, or other concern to the community." Connick, 461 U.S. at 146, 103 S.Ct. at 1690. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48, 103 S.Ct. at 1690.

The County argues that Johnson's statements were not upon matters of public concern because they were false and made with a reckless disregard for the truth. ³ The County argues that recklessly false statements, like statements about matters of no public interest, are per se unprotected by the First Amendment and that the Government need show no injury to its interests before it may fire an employee for making such statements.

In support of its position, the County relies solely upon Pickering v. Bd. of Education, 391 U.S. at 563, 88 S.Ct. at 1731. In Pickering, a school board urged the Supreme Court to hold that a teacher's statements were not constitutionally protected unless he spoke "factually and accurately, commensurate with his education and experience." 391 U.S. at 568-69, 88 S.Ct. at 1735. The teacher, on the other hand, urged the Court to rule that employees' statements on matters of public concern were protected unless they were made with knowledge that they were false or with a reckless disregard for the truth. Id. at 569, 88 S.Ct. at 1735. The Supreme Court expressly declined to "lay down a general standard against which all such statements may be judged." Id. Instead, the Court considered the statements' actual interference with the school board's legitimate interests in the operation of the school and weighed those interests against the important counter-interest in permitting free and open discussion of issues of public concern. The Court concluded, saying

[i]n sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

391 U.S. at 574, 88 S.Ct. at 1738 (footnote omitted). The County argues that this passage means that recklessly false statements are per se unprotected. However, the County's argument is refuted by a footnote attached to this very passage, in which the Court expressly declined to decide what protection was due recklessly false statements. Id. at n. 6. ⁴

In Donovan v. Reinbold, 433 F.2d 738 (9th Cir.1970), our court considered a similar situation in which a public employee was alleged to have written libelous articles in the press. Following Pickering, we stated that such speech

might be beyond First Amendment protection if the particular expression inhibits the efficient discharge of the employee's duties, or if the employee's position lends substantially greater credence to the expression than would be accorded to that of a member of the general public.

Id. at 742. Thus, we implied that the public employer must show a countervailing interest before it may terminate an employee for making statements that were recklessly false.

However, both Pickering and Donovan were decided prior to the Supreme Court's decision in Connick. Prior to Connick, determining whether speech was protected involved a single balancing test between the First Amendment interest in uninhibited speech and the public employer's interest in administrative efficiency. The Pickering balancing test did not attempt to first consider whether the speech was per se unprotected as a matter void of public concern. Thus, the public employer was always required to show at least some interference with its interests before it could penalize employees for their speech. The "matter of public concern" test attempts to identify those cases in which the First Amendment protection of the speech is so insubstantial that the employer need show no countervailing interest at all before the employer may repress it. The County argues that recklessly false statements, like speech regarding the minutiae of internal personnel disputes, enjoy so little First Amendment protection that the public employer need show no injury to its legitimate interests before taking adverse actions in retaliation.

The Circuits appear to be split on whether, in light of Connick, recklessly false statements are per se unprotected or whether the recklessness should be considered as one of the factors in the Pickering balance of interests. In Brenner v. Brown, 36 F.3d 18, 20 (7th Cir.1994), the Seventh Circuit stated that "even if the speech ... involved a matter of public concern, an employee's speech is not protected where it is made with a reckless disregard for the truth...." In Wulf v. City of Wichita, 883 F.2d 842, 859 n. 24 (10th Cir.1989), the Tenth Circuit wrote, "[p]resumably, the issue of the truth or falsity of the statements at issue is relevant to both the threshold public concern analysis and the balancing required under Pickering. It is difficult to see how a maliciously or recklessly false statement could be viewed as addressing a matter of public concern." See also Powell v. Gallentine, 992 F.2d 1088, 1091 (10th Cir.1993). On the other hand, in Brasslett v. Cota, 761 F.2d 827, 840-41 (1st Cir.1985), the First Circuit considered the recklessness of the employee's statements as part of the Pickering balancing test and refused to apply a per se rule. This same approach was followed by the D.C. and Fifth Circuits in American Postal Workers Union v. United States Postal Service, 830 F.2d 294, 305-06 (D.C.Cir.1987), and Moore v. City of Kilgore, 877 F.2d 364, 376 (5th Cir.), cert. denied, 493 U.S. 1003, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989), respectively.

We find the latter cases more persuasive. The County is correct that "there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and wide-open' debate on public issues." Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). However, while false statements are not deserving, in themselves, of constitutional protection, "erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the 'breathing space' that they ...