Ninth Circuit Continues To Squelch Freedom Of Speech
The Ninth Circuit Court of Appeals finds another reason to dismiss a First Amendment claim. The ex-police chief's speech was not a matter of 'public concern,' even though she was fired because of it.
The U.S. Supreme Court has ruled the First Amendment “prohibits government officials from subjecting individuals to ‘retaliatory actions’ for having engaged in protected speech.”
This seems to be a clear pronouncement. However, the U.S. Court of Appeals for the Ninth Circuit has found a way around it.
A three-judge panel recently voted 2-1 to deny First Amendment protection to a former Sacramento police chief who was forced to resign in 2021.
When Kate Adams was a captain in 2013, she forwarded racist images to two coworkers with the note, “Some rude racist just sent this!” The private exchange occurred on New Year’s Eve, when they were not working.
In 2020, Adams was appointed police chief for the city of Rancho Cordova in California. Her friendship with one of the text recipients, Dan Marchese, deteriorated when she forwarded a complaint to internal affairs accusing him of misconduct. He then filed a complaint against Adams based on the racist memes she sent him seven years earlier, while omitting her disdain for the vile racism.
There is no dispute that Adams was forced to resign.
The NAACP subsequently published an open letter in the local newspaper accusing Adams of sending racially charged memes and demanded an investigation. She was forced to resign from a longtime teaching position at a local university and two prospective employers ended consideration of her.
The 9th Circuit panel majority ruled that Adams’ speech - sending the racist memes, while noting her disapproval - was not covered by the First Amendment because it did not involve a matter of “public concern.” The panel concluded Adams’ speech was private and did not advance societal public debate, even though it precipitated her professional downfall.
The judges in the majority were two Democratic appointees, Senior Judge Sidney R. Thomas and recent Biden appointee, Circuit Judge Gabriel P. Sanchez.
In a dissent, Judge Consuelo M. Callahan wrote: “The public concern test was not meant to deprive public servants of all First Amendment protection… Ms. Adams should have the chance to hold the County accountable for its harsh reaction to her speech.” Judge Callahan said the majority invented a “new set of requirements” about what constitute speech of public concern that withholds protection to “a dedicated public servant who devoted 27 years of her life to protecting the people of Sacramento County.”
Callahan was appointed by Republican President George W. Bush.
So Much For Free Speech?
I noticed the case because two Ninth Circuit panels, in separate rulings, said the Social Security Administration did not violate my free speech rights.
I was not hired for an attorney position with the Social Security Administration in 2011 because the hiring officer objected to a blog I wrote as a public service about worker rights. He testified under oath that he was concerned I might one day criticize him.
This was a clear case of retaliation for writing about matters of public interest. However, Chief U.S. District Judge Miranda Du of Nevada said the hiring officer’s concern “undermined any viable claim of discrimination or even reprisal based on protected activity based on age.” She effectively said no sane person would hire someone who writes about worker rights.
A 9th Circuit panel then rejected my claim that the SSA violated Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, which prohibit retaliation for opposing discrimination. The panel’s decision hinged upon the fact I had not specifically written about the Social Security Administration. (Why that matters remains a mystery?)
I filed a new claim alleging the hiring officer abridged my First Amendment right to freedom of speech. Judge Du dismissed that claim on the grounds that it could encourage lawsuits by “anyone denied of federal employment, [who] believes the denial was based on protected speech.” Moreover, she said the hiring officer had an “innocent motive” - concern that I might one day criticize him.
A Ninth Circuit panel in April issued a cursory ruling that my claim was foreclosed by a 2022 U.S. Supreme Court decision which, according to the panel, grants federal employees blanket “qualified immunity” from being sued for violating citizens’ rights to free speech.
The panel did not explain its decision and did not address the fact my claim was filed prior to the 2022 ruling, when circuit precedent allowed such lawsuits. Also, Judge Du clearly entertained the claim, grossly misinterpreting a key case to justify its dismissal.
This has left me with no recourse for a clear violation of my First Amendment rights.
Writing about worker rights apparently exempts the author from First Amendment protection in the Ninth Circuit.
In Adams’ case, a 9th Circuit panel decided she was not entitled to First Amendment protection because her speech was not a matter of “public concern” even though her text was used unjustly to destroy her career.
In my case, there can be no question my speech was a matter of public concern since it appeared on a internet blog, Abuser Goes To Work, that was syndicated nationally and carried by The American Bar Association. But that didn’t matter to the Ninth Circuit because I didn’t directly criticize the Social Security Administration, and the Supreme Court issued a questionable after-the-fact decision not to allow lawsuits against public officials.
It’s a form of damned if you do and damned if you don’t. Either way, the Ninth Circuit withholds protection for free speech.
The bottom line is the Ninth Circuit exists to protect the U.S. Constitution but seems reluctant to do so.
Adams’lawsuit will continue, as it contains claims unrelated to free speech that were not considered by the Ninth Circuit. The decision in her case can be found at Kate Adams v. County of Sacramento et al, No. 23-15970 (9th Cir. Sep. 9, 2024)