Swank v. Smart
| Decision Date | 27 April 1990 |
| Docket Number | No. 89-1360,89-1360 |
| Citation | 898 F.2d 1247 |
| Parties | Gary D. SWANK, Plaintiff-Appellant, v. James SMART, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John H. Bisbee, Macomb, Ill., for plaintiff-appellant.
Mary W. McDade, Murvel Pretorius, Jr., Quinn, Johnston, Henderson & Pretorius, Stephen D. Gay, Husch, Eppenberger, Donohue, Cornfeld & Jenkins, Peoria, Ill., for defendants-appellees.
Before CUDAHY, POSNER, and MANION, Circuit Judges.
A policeman brought this civil rights suit against a small town in western Illinois that fired him for conduct unbecoming an officer, and against the officials actually responsible for the firing. 42 U.S.C. Sec. 1983. The district judge granted summary judgment on his own initiative and dismissed the case.
Tina Millin was a 17-year-old student at the Robert Morris College in Carthage. Gary Swank was a member of the town's three-man police force. On September 24, 1986, after supping at McDonald's with his wife, Swank, who was off duty, mounted his motorcycle and rode off to look for a friend who worked the night shift in the sheriff's office. He could not find him and rode around looking. His quest took him several times through an intersection where two teenage girls, whom he did not know, waved at him. On his fourth pass through the intersection Swank stopped, flagged down by one of the girls. This was Tina, who was attracted by the "cute little elephant on his bike," and whose former boyfriend had taken her for rides on his motorcycle. After chatting with the two girls for a while, Swank took Tina for a ride on his motorcycle. The ride, which began sometime between 12:30 and 1:30 a.m., lasted twenty or thirty minutes. The riders discussed Tina's courses at the college, the motorcycle, her former boyfriend, her opinion of Carthage, and similar topics. At the end of the ride, Swank deposited Tina at the intersection where he had found her and where the other girl was still waiting.
Another Carthage policeman saw Swank and Tina Millin riding on the motorcycle and he reported what he had seen to the chief of police. Swank was already on probation with the department for various deficiencies in the performance of his duties. To his chief, the late-night ride with a teenage girl--who turned out to be a student of the college--was the last straw. The chief prepared a list of charges to present to the Public Safety Committee of the City Council at its meeting on the evening of October 6. At 2:00 a.m. on the day of the meeting, he obtained a statement from Tina concerning the ride. He mentioned the statement to the members of the committee, but they didn't want to read it because, in the words of the mayor, who was the committee's chairman, "they didn't want to know all the gory details."
The list of charges, which the chief read aloud at the meeting, recounted the motorcycle incident and added that Swank had lied when confronted with it. Swank, who was present by invitation, was asked to respond to the charges, and he did. He denied that he had lied to the chief about the incident but admitted that the incident had occurred. He emphatically denied any romantic or sexual angle. After Swank had responded to the charges, the chief gave the committee members a brief written statement that the chief had prepared. It stated that the Carthage police had to have the complete confidence of the college and its students and that the motorcycle ride had "tarnished" the police force's (collective) badge.
The chief and Swank were then excused, and the committee deliberated. At the conclusion of its deliberations, it voted to suspend Swank until the next meeting of the City Council, which took place on October 14. Swank was not present at that meeting. The chairman of the Public Safety Committee (the mayor) presented the matter to the council, noted the police chief's belief that Swank had exhibited "conduct unbecoming a police officer," and finished by telling the council that the committee recommended that Swank be fired. The council then voted four to three to fire him, on the ground that the motorcycle incident "was his third write up [and] the incident [was] damaging the good relationship the city police and the city had with the college students and personnel." The complaint in this lawsuit alleges that the defendants revealed to the local press the ground for firing Swank. The firing received some coverage in local newspapers, and one of the articles mentioned that the ground was conduct unbecoming an officer. Since being fired, Swank has been unable to obtain another job as a policeman. And the Robert Morris College has closed its Carthage campus.
Swank contends that his dismissal from the Carthage police force deprived him of his constitutional rights to freedom of speech, freedom of locomotion, and freedom of association, and also deprived him of his property right and liberty interest in his job (for, despite being "on probation," he was a tenured rather than probationary civil servant when fired) without due process of law. The appeal emphasizes, mistakenly as it seems to us, the deprivation of Swank's substantive rights--aspects of liberty that, he contends, the due process clause of the Fourteenth Amendment secures to him unless the state can demonstrate an overriding public purpose in restricting them--rather than his right not to be deprived of his job without minimum procedural safeguards.
The free-speech claim is quickly dispatched. The conversation between Swank and Tina on the motorcycle was speech in the literal sense, but not speech protected by the free-speech clause of the First Amendment (). It was also association in the literal sense, but not association "for the advancement of beliefs and ideas." NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). The purpose of the free-speech clause and of its judge-made corollary the right of association is to protect the market in ideas, Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting), broadly understood as the public expression of ideas, narratives, concepts, imagery, opinions--scientific, political, or aesthetic--to an audience whom the speaker seeks to inform, edify, or entertain. Casual chit-chat between two persons or otherwise confined to a small social group is unrelated, or largely so, to that marketplace, and is not protected. Such conversation is important to its participants but not to the advancement of knowledge, the transformation of taste, political change, cultural expression, and the other objectives, values, and consequences of the speech that is protected by the First Amendment.
The distinction is sharply--perhaps too sharply--drawn in cases in which public employees are fired because of something they said. They have no First Amendment claim unless they were speaking on matters of "public concern." Connick v. Myers, 461 U.S. 138, 142-49, 103 S.Ct. 1684, 1687-91, 75 L.Ed.2d 708 (1983); Biggs v. Village of Dupo, 892 F.2d 1298, 1301-03 (7th Cir.1990). Maybe, as the Tenth Circuit suggested in Flanagan v. Munger, 890 F.2d 1557, 1563-65 (1989), the purpose of the "public concern" requirement is to distinguish grievances of an entirely personal character from statements of broader interest concerning one's job, rather than to fix the boundaries of the First Amendment. That refinement is not important in this case. Whatever the exact boundaries, constitutionally protected expression is not the totality of expression. That "kernel of expression" which can be found "in almost every activity a person undertakes--for example, walking down the street, or meeting one's friends at a shopping mall ... is not sufficient to bring the activity within the protection of the First Amendment." City of Dallas v. Stanglin, --- U.S. ----, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989).
Discussion of college courses, of college itself, of Carthage (whether that "cauldron of unholy loves" of which St. Augustine speaks in the Confessions, or its Illinois namesake, where Joseph Smith, the founder of the Mormon religion, was lynched)--even discussion of motorcycles and former boyfriends--can contribute to the marketplace of ideas. But not in this case. The conversation that took place between Gary Swank and Tina Millin on the motorcycle ride, a conversation idle or flirtatious in character, was too remote from the political rally, the press conference, the demonstration, the theater, or other familiar emporia of the marketplace of ideas to activate the guarantees of the First Amendment.
Yet because chit-chat is important to the participants, although not to the community when conceived of as more than the sum of its members, the freedom to engage in it is an aspect of the liberty protected by the due process clause, along with the freedom to exercise other harmless liberties illustrated by Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1247 (9th Cir.1982). A law that enjoined silence on all persons not participating in the marketplace of ideas, a law that forbade people to go from one place to another within the same state (and so extinguished the "right of locomotion," as distinct from the right to travel interstate, Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186 (1900)), a law that forbade dating or, for that matter, forbade an off-duty policeman to offer a ride on his motorcycle to a coed--all of these hypothetical laws would infringe liberty. If arbitrary, they would be deemed to violate "substantive due process," the term for the protection that the due process clause has been held to extend to...
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