A Gray Area in First Amendment Claims

A U.S. Supreme Court decision handed down January 17, 2017, exposes a gray area in First Amendment law in the employment environment. The Court declined when asked to review a Louisiana town’s decision to discharge a local police officer aiding the FBI in a federal probe of town leaders. Town of Ball, La. v. Howell (U.S. 2017).

Howell was a police officer for the Town of Ball, Louisiana. The FBI suspected fraud in the town’s request for federal aid to the Federal Emergency Management Agency (FEMA) and asked Howell if he would help them gather evidence by wearing a wire. Howell agreed and recorded conversations between the mayor and town officials discussing bids for aid after two hurricanes. Howell caught enough on tape to implicate the mayor in FEMA fraud, and the town’s mayor, police chief, and four others pleaded guilty to federal charges. You may have thought Howell would be promoted. Instead, he was fired for alleged insubordination involving the replacement police chief, Daniel Caldwell.

Howell sued, believing he was terminated for helping the FBI. A district court dismissed his First Amendment retaliation claim, but the U.S. Court of Appeals for the Fifth Circuit revived it, remanding it back to the U.S. District Court for the Western District of Louisiana for further handling. At that point, the Town of Ball sought Supreme Court review of the appeals court decision allowing Howell to allege retaliation for exercising his First Amendment rights.

At issue was whether Howell’s statements to the FBI about town officials’ alleged fraud were constitutionally protected speech, or part of his ordinary job duties and therefore not covered by the First Amendment. Supreme Court rulings lack clarity when an employee acts as Howell did in assisting the FBI. Was this part of his main job duties or not? In the past, the Supreme Court has said that determining this requires a “practical inquiry” focused on tasks an employee “actually is expected to perform.” Decisions in this area have not been clear, with different circuit courts reaching different conclusions. In this case, the Supreme Court declined to overcome the inconsistencies among circuit courts, allowing the Fifth Circuit decision to stand.   

We can only advise public-sector employers to tread carefully in this area, and let us help interpret the facts in their case consistently with current law in the appropriate jurisdiction.