Sarcasm and Public Employment Don’t Mix, Part Deux

GavelBack in my previous blogging life, I wrote about a case by the 11th Circuit, Mitchell v. Hillsborough County, No. 05-12207 (11th Cir., Oct. 31, 2006), which involved a county employee who made satirical remarks about one of the country commissioners, and got fired for it.  In “Swift Would Be Ashamed” from 2006, I wrote about the facts of that case:

Plaintiff Gary Mitchell had a job filming the meetings of his local Board of Commissioners and he also volunteered at the local public access television station. Due to a brouhaha over indecent programming, the Board of Commissioners had proposed to cut public access funding. Commissioner Rhonda Storms was leading the morality crusade, so Mitchell decided to have some fun at her expense. During the open comment period of a supervisors’ meeting, Mitchell took to the podium wearing a beret with a thunderbolt on top and announced that he was a member of a fictitious political support group called the Thunderheads. He then gave a speech praising Storms and concluded with a question: given her preoccupation with women’s body parts, did she prefer the nickname “Vagi” or “Gina”?

I perhaps can understand the efficiency argument in this case (though it is certainly not a slam dunk), but I don’t agree at all that this is not speech on a matter of public concern.  As Robert [Loblaw] points out, that would be like saying Jonathan Swift’s Modest Proposal was really about cannibalism.

The 11th Circuit found that Mitchell’s speech was not a matter of public concern, and even if it was, the efficiency concerns of the employer in ensuring co-worker harmony outweighed any First Amendment rights Mitchell would have had.

Well, the humor of the federal courts has not improved in three years.  Not even in my hometown. 

Witness Milwaukee Deputy Sheriff’s Association v. Clarke, No. 08-3298 (7th Cir., July 21, 2009).  The case also concerns sarcastic remarks by a public employee:

The dispute in this case is what one’s mother might have in mind when she imparts the classic phrase, “Sticks and stones may break my bones, but words will never hurt me.” Apparently, Milwaukee County Sheriff David A. Clarke, Jr., did not take this childhood lesson to heart. In the summer of 2005, Sheriff Clarke posted on a roll-call bulletin board a quote that at least one deputy, Michael Schuh, considered an offensive challenge to his and his fellow officers’ courage. Schuh fired back by publishing a two-sentence statement challenging Sheriff Clarke’s courage. Sheriff Clarke, apparently afraid that words would hurt him, quickly responded by reassigning Schuh to a newly created mission in one of Milwaukee’s most crime-ridden neighborhoods . . . .

We are sympathetic to Schuh’s position, and we consider Sheriff Clarke’s response against Schuh to be excessive. But there are limits to the First Amendment’s protections when a public employee speaks, and because we find that Schuh was speaking on a matter of purely private concern, we agree with the district court that summary judgment in Sheriff Clarke’s favor was appropriate.

The statement, you wonder?

Deputy Schuh’s article mirrored Sheriff Clarke’s quote from Deuteronomy, with a few additions that Moses never uttered while outside of the Promised Land:

Union Member’s Response:

If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your house when you’re out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office).

Now, the comment was clearly made to criticize the Sheriff’s use of police personnel for his own personal business — what could be more about public concern than how the taxpayers money is being used by the Sheriff?  Was the mere sarcastic nature of the remark dispositive in suggesting that the interaction between the Sheriff and his deputy was purely personal?

If the court had allowed this dispute to survive the Connick matter of public concern test, the next step would have been the Pickering balance of the public employee’s right to free speech against the efficiency concerns of the police department.

My own take on this is that it is unlikely that this episode caused that much upheaval in the department since the Sheriff’s practices were already well known. I would have been inclined to find the balance for the employee and held the Department at least liable for the Sheriff’s conduct (whether the Sheriff could qualify for qualified immunity might be a closer question as far as individual liability).

In any event, and as I said three years ago, “One does not need to speak seriously in order to make one’s publicly important point.  Sometime satire is much more powerful and makes that point much more effectively.”

Hat Tip: Victor Forberger

Cross-Posted on Workplace Prof Blog.

This Post Has 2 Comments

  1. Kevin Butzen

    “Now, the comment was clearly made to criticize the Sheriff’s use of police personnel for his own personal business — what could be more about public concern than how the taxpayers money is being used by the Sheriff?”

    Is this really so clear? Because the court disagrees with you here. The court found that the statement was *not* made to criticize the Sheriff’s use of police personnel, but rather to criticize the Sheriff’s posting of a quote that the deputy found personally offensive.

    How does the court reach this conclusion? The deputy said so. See footnote 5 in the opinion, and the accompanying text. The deputy admitted more than once that his purpose was to challenge the Sheriff’s posting that he found offensive—to “throw back at him what he threw at us.”

    The deputy’s purpose was not to have a conversation about the Sheriff’s use of personnel. Bringing that up was incidental to the deputy’s actual purpose of challenging the Sherriff’s courage. That’s what the court concluded, at least, and I agree with the court.

  2. Ron English

    “You can’t make up anything anymore. The world itself is a satire. All you’re doing is recording it.”

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