Even Mayors Cannot Infringe upon Free Speech Rights of Public Sector Employees

A mayor in Tennessee warned a municipal clerk to stop promoting an ex-employee’s potential claims against the city and not to help with any lawsuit that might be filed by the ex-employee who had been discharged. The U.S. Court of Appeals for the Sixth Circuit ruled on April 24, 2012, that Mayor Crider might be liable for violating the clerk’s First Amendment rights. Whitney v. Milan (6th Cir. 2012). 

Mayor Chris Crider argued that he was entitled to qualified immunity for the First Amendment claims of municipal clerk Whitney. The court disagreed. Whitney sued both the city and Crider, claiming a prior restraint claim under the First Amendment because Crider repeatedly ordered Whitney not communicate with ex-employee Williams, who was Whitney’s friend. He also told her not to “promote” any claims Williams might have against the city, and not participate in any lawsuit Williams may or may not file. 

Williams did file suit, claiming sex discrimination and retaliation. Shortly thereafter, Whitney filed her own lawsuit, arguing that she had suffered interference with her freedom of association, right to assembly, and right to intimate association. She also claimed retaliation for protected speech.

The Sixth Circuit found that Crider’s order that Whitney cease personal contact with Williams was speech on a matter of private concern and therefore not protected. However, the court also held that Crider’s warnings that Whitney not promote any legal claims and not participate in any potential lawsuit were matters of public concern, and deserving of First Amendment protections. 

This case, which would apply to municipalities and other political subdivisions of state government, points out how important it is for elected officials to understand the subtleties of employment laws and how they impact their duties.