No Qualified Immunity as to Firing of Assistant Principal for Rant About Democratic National Convention

Starting at Thompson v. Central Valley School Dist. No. 365The case was decided by Chief Judge Stanley Bastian (E.D.) a month earlier. Wash.

“[W]e … live in a time when a careless comment can ruin reputations and crater careers that have been built over a lifetime because of the demand for swift justice, especially on social media. It is the prerogative of private employers to act against an inappropriate tweet or silly Facebook comment. However, the First Amendment must be respected by government employers. Moser v. Las Vegas Metro Police Dep’t (9th Cir. 2021).

[From 1991 to] August 2020, Plaintiff was an assistant principal at Evergreen Middle School …. He posted his views about the 2020 Democratic National Convention on Facebook after watching it.

The text of the posting is disputed. I have included the claims of defendant (which are relevant to this stage of the case), and added brackets any additional material or material the plaintiff reported:

Demtard convention opened, where the only truths that were said were names. Lie after lie. Michelle Obama’s tirade could be enough to make fact-checkers quit. [What s hatefull racists bitch.]You are a fool if you lie in order to win. You are worse if you believe them. Get up! [fuck]America, get up! An athlete is being used as a fake media. [athleats]The performers are really clueless, and they fly with pedophile men. [bitch]Marxist BLM and Antifa. Your country is missing out and we are going to be taking you to the woodshed to get a good education. God bless you for getting your head out of your own heads [so we will not have to]. It’s time for the red tide. We’ll see how long it takes for the FB liberal defenders to take this down.

Revert to the opinion

Plaintiff was put on administrative leave August 19, 2020 by CVSD superintendent Ben Small. Small thought that the position was insensitive. After conducting an investigation into the post, CVSD also uncovered other statements and conduct by Plaintiff that it found to be concerning, Eventually, Plaintiff was demoted from his assistant principal job and is now teaching in the classroom for CVSD….

It Pickering/GarcettiA line of cases has recognized that the state as employer is entitled to regulate the speech of employees in ways that are significantly different from the citizens. Look! Pickering v. Bd. Pickering v. Bd. (1968); Garcetti v. Ceballos (2006). Because the state is an employer and has an interest in promoting efficiency through the public services it renders to its workers, this applies. As a result, a governmental employer may impose certain restrictions on the speech of its employees, restrains that would be unconstitutional if applied to the general public….

The Court will resolve the question of qualified immunity in relation to the First Amendment retaliation claims of public employees. It must accept the truth of Plaintiff’s allegations. This includes (1) whether Plaintiff spoke as a private citizen, (2) whether the employer took adverse action against the employee because of his speech and (3) whether the speech of the employee was the cause. The public concern inquiry is purely a question of law—if the speech in question does not address a matter of public concern, the speech is unprotected and qualified immunity should be granted. The content, format, and context in which an employee speaks must all be considered when determining whether it addresses a public matter. This can only be done by reviewing the entire record. “[T]The content of the speech is usually the most significant. Courts should not look at context or form when reviewing a speech. Instead, they must focus on its point. This includes factors like the motivation of the speaker and who the speech was delivered to.

Plaintiff claims that he spoke as a private citizen using his personal computer and on a topic of public concern, the 2020 Democratic National Convention. The Court has accepted Plaintiff’s claims as true for the purposes of this motion. Accepting Plaintiff’s accusations as true, it is not unreasonable for school officials and law enforcement to conclude that his speech was not protected by the First Amendment. At the very least, defendants were aware that any offensive speech should be protected. Look! Snyder v Phelps (2011); See also Rankin v. McPherson(1987) (holding the “arguably” inappropriate or controversial nature of a sentence is not relevant to the question of whether it deals in a matter that is of public concern {In SnyderAccording to the U.S. Supreme Court, Westboro’s “content” was clearly connected to wider issues that are of public concern to the entire society. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.”}

The proceedings are now at an advanced stage. Questions of fact remain about whether Plaintiff’s speech was speech regarding a matter that is of public concern, whether Plaintiff spoke in private when giving the speech, and whether the Defendant had sufficient justification to not treat Plaintiff any differently than other members the public. Therefore, the Defendants did not prove that they have qualified immunity.