{"id":6240,"date":"2009-07-22T11:14:16","date_gmt":"2009-07-22T16:14:16","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=6240"},"modified":"2009-07-22T13:37:36","modified_gmt":"2009-07-22T18:37:36","slug":"sarcasm-and-public-employment-dont-mix-part-deux","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/07\/sarcasm-and-public-employment-dont-mix-part-deux\/","title":{"rendered":"Sarcasm and Public Employment Don’t Mix, Part Deux"},"content":{"rendered":"

\"Gavel\"<\/a>Back 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)<\/a>, which involved a county employee who made satirical remarks about one of the country commissioners, and got fired for it.\u00a0 In “Swift Would Be Ashamed” from 2006<\/a>, I wrote about the facts of that case:<\/p>\n

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\u2019 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\u2019s body parts, did she prefer the nickname “Vagi” or “Gina”?<\/p><\/blockquote>\n

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.\u00a0 As Robert [Loblaw] points out, that would be like saying Jonathan Swift’s Modest Proposal<\/em> was really about cannibalism.<\/p>\n

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.<\/p>\n

Well, the humor of the federal courts has not improved in three years.\u00a0 Not even in my hometown.\u00a0 <\/p>\n

Witness Milwaukee <\/a><\/span>Deputy Sheriff’s Association v. Clarke, No. 08-3298 (7th Cir., July 21, 2009)<\/a>.\u00a0 The case also concerns sarcastic remarks by a public employee:<\/p>\n

The dispute in this case is what one\u2019s mother might have in mind when she imparts the classic phrase, \u201cSticks and stones may break my bones, but words will never hurt me.\u201d 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\u2019 courage. Schuh fired back by publishing a two-sentence statement challenging Sheriff Clarke\u2019s courage. Sheriff Clarke, apparently afraid that words would hurt him, quickly responded by reassigning Schuh to a newly created mission in one of Milwaukee\u2019s most crime-ridden neighborhoods . . . .<\/p>\n

We are sympathetic to Schuh\u2019s position, and we consider Sheriff Clarke\u2019s response against Schuh to be excessive. But there are limits to the First Amendment\u2019s 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\u2019s favor was appropriate.<\/p>\n

The statement, you wonder?<\/p>\n

Deputy Schuh\u2019s article mirrored Sheriff Clarke\u2019s quote from Deuteronomy, with a few additions that Moses never uttered while outside of the Promised Land:<\/p>\n

Union Member\u2019s Response:<\/p>\n

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\u2019re out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office).<\/p>\n

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?\u00a0 Was the mere sarcastic nature of the remark dispositive in suggesting that the interaction between the Sheriff and his deputy was purely personal?<\/p>\n

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

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).<\/p>\n

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.\u00a0 Sometime satire is much more powerful and makes that point much more effectively.”<\/p>\n

Hat Tip: Victor Forberger<\/p>\n

Cross-Posted on Workplace Prof Blog.<\/p>\n","protected":false},"excerpt":{"rendered":"

Back 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.\u00a0 In “Swift Would Be Ashamed” from 2006, I wrote […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[67,33,23],"tags":[],"class_list":["post-6240","post","type-post","status-publish","format-standard","hentry","category-first-amendment","category-labor-employment-law","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/6240","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=6240"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/6240\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=6240"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=6240"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=6240"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}