Also known as: pursuant to his official duties · pursuant to her official duties · pursuant to official duties · in the course of official duties · within scope of official duties
Written by attorneys — see sources below.
Statements made by a public employee while carrying out assigned job responsibilities. Such statements receive no First Amendment protection from employer discipline even when they address matters of public concern.
Perry Pratt, a calendar deputy in the district attorney's office, prepared a memo recommending dismissal of a case after discovering inaccuracies in an affidavit. His supervisor reassigned him to a less desirable position because of the memo's contents. The reassignment occurred without First Amendment review because the memo arose directly from Pratt's assigned duty to advise on pending prosecutions.
Priscilla Parks, a program director at a state agency, received a subpoena to testify about corruption she had discovered while employed. After testifying, her supervisor terminated her. The testimony did not qualify as speech pursuant to official duties because no job requirement compelled her to appear and speak in court.
In 2006, Central Alabama Community College (CACC) hired petitioner Edward Lane to be the Director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged youth. CACC hired Lane on a probationary basis. In his capacity as Director, Lane was responsible for overseeing CITY's day-to-day operations, hiring and firing employees, and making decisions with respect to the program's finances. At the time of Lane's appointment, CITY faced significant financial difficulties that prompted Lane to conduct a comprehensive audit of the program's expenses. The audit revealed that Suzanne Schmitz, an Alabama State Representative on CITY's payroll, had not been reporting to her CITY office. After unfruitful discussions with Schmitz, Lane shared his finding with CACC's president and its attorney, who warned him that firing Schmitz could have negative repercussions for him and CACC. Lane nonetheless contacted Schmitz again and instructed her to show up to the Huntsville office to serve as a counselor, but Schmitz refused, leading Lane to fire her shortly thereafter. Schmitz' termination drew the attention of federal authorities. In November 2006, Lane testified before a federal grand jury about his reasons for firing Schmitz. In January 2008, the grand jury indicted Schmitz on four counts of mail fraud and four counts of theft concerning a program receiving federal funds. Schmitz' trial, which garnered extensive press coverage, commenced in August 2008. Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. The jury failed to reach a verdict. Roughly six months later, federal prosecutors retried Schmitz, and Lane testified once again. This time, the jury convicted Schmitz on three counts of mail fraud and four counts of theft concerning a program receiving federal funds. The District Court sentenced her to 30 months in prison and ordered her to pay $177,251.82 in restitution and forfeiture. Meanwhile, CITY continued to experience considerable budget shortfalls. In November 2008, Lane began reporting to respondent Steve Franks, who had become President of CACC in January 2008. Lane recommended that Franks consider layoffs to address the financial difficulties. In January 2009, Franks decided to terminate 29 probationary CITY employees, including Lane. Shortly thereafter, however, Franks rescinded all but 2 of the 29 terminations—those of Lane and one other employee—because of an ambiguity in those other employees' probationary service. In September 2009, CACC eliminated the CITY program and terminated the program's remaining employees. Franks later retired, and respondent Susan Burrow, the current Acting President of CACC, replaced him while this case was pending before the Eleventh Circuit. In January 2011, Lane sued Franks in his individual and official capacities under 42 U.S.C. § 1983, alleging that Franks had violated the First Amendment by firing him in retaliation for his testimony against Schmitz. The District Court granted Franks' motion for summary judgment, holding that the individual-capacity claims were barred by qualified immunity and the official-capacity claims were barred by the Eleventh Amendment. The Eleventh Circuit affirmed. The Supreme Court granted certiorari to resolve discord among the Courts of Appeals as to whether public employees may be fired for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities.
View casePeter Park, a safety inspector for a state hospital, filed a mandatory incident report documenting understaffing that endangered patients. Hospital administrators suspended him after the report circulated internally. The suspension raised no First Amendment issue because the report was created to satisfy Park's written job obligation to document safety threats.
Pamela Phillips, a city police officer, sold a sexually explicit video of herself in uniform on an adult website. The department fired her after the video surfaced. The termination triggered ordinary First Amendment analysis because the video was produced and sold on personal time and bore no connection to any assigned police responsibility.
John Roe, a San Diego police officer, produced and sold videotapes depicting himself stripping out of a police uniform and engaging in sexually explicit acts. He marketed these videos along with custom videos and police equipment, including official San Diego Police Department uniforms, through an eBay account under the username Code3stud@aol.com, which he linked to his law enforcement employment. Roe's supervisor discovered the listings while browsing eBay and recognized Roe from the images. The supervisor shared the materials with higher-ranking officers, prompting an internal affairs investigation. During the investigation, Roe produced an additional custom video at the request of an undercover officer showing him revoking a traffic citation after performing indecent acts in uniform. The San Diego Police Department determined that Roe's conduct violated departmental policies on conduct unbecoming an officer, outside employment, and immoral conduct. After Roe failed to fully comply with an order to cease selling such materials, the department initiated termination proceedings, resulting in his dismissal from the force. Roe filed suit in the United States District Court for the Southern District of California under 42 U.S.C. § 1983, claiming the termination infringed his First Amendment rights. The district court granted the City's motion to dismiss, but the Court of Appeals for the Ninth Circuit reversed that decision. The Supreme Court granted the City's petition for a writ of certiorari to review the Ninth Circuit's judgment.
View caseCourts examine whether the employee was fulfilling a specific job requirement at the time of the speech. Written protocols, job descriptions, and the content of the communication itself supply the key evidence. When the speech forms part of a mandatory report or assignment, it falls within official duties.
No. The origin of the speech as a required work product controls the analysis. Even when an employee adds a note or forwards the document externally, the core content generated to satisfy a job obligation remains speech pursuant to official duties.
The First Amendment provides no protection against employer discipline. The government may sanction the speech without applying the usual public-concern balancing test that would otherwise govern citizen speech.
…holding that officers of the United States were liable for injuries caused by their unlawful conduct even if they did so acting pursuant to official duties, cited the passage from Feather v. Queen . See 161 U. S., at 18. : Chief Justice Marshall, writing for the Court, recognized this distinction in the very first case to reach the…