WV Supreme Court: Restrictions on Public Employees’ Free Speech and Shifting Burdens

In an opinion handed down on Friday, January 30, 2009, the West Virginia Supreme Court of Appeals, in Alderman v. Pocahontas Board of Education, No. 33922, reached two significant holdings relating to and generally restricting the free speech rights of public employees.

First, in Syllabus Point 5 of the opinion authored by Justice Davis, the court held that:

There are some general restrictions on a public employee’s right to free speech. First, an employee’s speech, to be protected, must be spoken as a citizen on a matter of public concern. If the employee did not speak as a citizen on a matter of public concern, then the employee has no First Amendment cause of action based on the employer’s reaction to the speech. If the employee did speak as a citizen on a matter of public concern, the possibility of a First Amendment claim arises and a second and a third factor are invoked. The second factor that is invoked considers statements that are made with the knowledge that they were false or with reckless disregard of whether they were false, and such statements are not protected. The third factor that is invoked considers statements made about persons with whom there are close personal contacts that would disrupt discipline or harmony among coworkers or destroy personal loyalty and confidence, and such statements may not be protected.

Second, as to the shifting burdens in cases where an employee alleges retaliation as a result of the exercise of constitutionally protected free speech, the court held in Syllabus Point 6, as follows:

The burden is properly placed on the public employee to show that conduct is constitutionally protected and, further, that this conduct was a substantial or motivating factor in the employment decision. Once the public employee carries that burden, however, the public employer must show by a preponderance of the evidence that it would have reached the same decision as to the public employee’s employment even in the absence of the protected conduct.

As to the question whether the employee spoke as a citizen on a matter of pubic concern, the West Virginia court cited to the recent decision by the United States Supreme Court in Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 1958, 164 L. Ed. 2d 689 (2006), where the Supreme Court applied the “matter of public concern” to Federal employees in holding that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

What makes Alderman even more interesting is that it involved speech by Mr. Alderman at both a hearing and in postings on an internet website.  While that speech was not the kind that most would encourage or find tolerable, First Amendment and internet freedom advocates will probably be concerned with the result and with the implications for free speech via the internet.

Interestingly, on the American Library Association’s website, another United States Supreme Court case involving the West Virginia State Board of Education, is quoted:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” — Supreme Court Justice Robert Jackson, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

Whether the current case will be appealed further remains to be seen.  In the meanwhile, it is likely that this case will generate additional commentary among bloggers and others.

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