Dive Brief:
- Miami-Dade County did not violate a media aide’s free speech rights when it fired him after he wrote an opinion piece using “inflammatory language” to describe LGBTQ+ people, the 11th U.S. Circuit Court of Appeals ruled July 3 (Labriola v. Miami-Dade County).
- After the worker published a piece critiquing the proposed Equality Act and using slurs and “off-color” descriptions to refer to transgender and homosexual people, the county received a “barrage of phone calls from concerned residents,” according to the court. He was suspended briefly without pay, required to undertake anti-discrimination training and ultimately fired for failing to do so.
- The court found that the worker’s free speech interests did not outweigh the county’s interest in “effective and efficient fulfillment of its responsibilities” due to the manner in which the speech was made, as well as its context and disruptiveness.
Dive Insight:
A public employee’s First Amendment rights are “not absolute,” the 11th Circuit said in its opinion, because “the State’s interest as an employer in regulating the speech of its employees differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”
The court considered a four-factor test from the 1968 case Pickering v. Board of Education, finding that for a public worker to prevail on a First Amendment claim, the worker must show (1) that the speech involved a matter of public concern, (2) that their free speech interests outweigh the employer’s interest in effective and efficient fulfillment of responsibilities, and (3) that the speech played a substantial role in the adverse action.
While both parties agreed the speech involved a matter of public concern, the court concluded the worker’s claim did not pass the second test. In reaching that conclusion the court said it considered — at the direction of Pickering — “(1) whether the speech at issue impedes the government’s ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made.”
The speech in Labriola led to significant disruption at work, the court noted, impairing relationships among co-workers and leading to so many calls it “really prevented us from doing our day-to-day operations during those days,” another employee testified — failing the first test.
While the time and place were appropriate, the court found — off-duty and away from work — the manner was not. “To put it mildly, the opinion piece was ‘disrespectful, demeaning, rude, and insulting,’” the 11th Circuit determined. “And, based on the shock and appall of his coworkers, it was clearly perceived that way at the office.”
Finally, the worker’s statements being public rather than private also weighed against him in terms of context, the court found.
The worker additionally alleged Miami-Dade County violated his rights through compelled speech related to the anti-discrimination training, but as the judges noted, the training, had the worker attended it, would have been “a generic anti-discrimination training, whose accompanying presentation barely touched on LGBT-related topics.” The worker’s contention that there was a “good possibility” he would have been made to say something with which he disagreed was therefore “rank speculation,” the judges said.
Labriola is the second First Amendment case dealing with public workplace LGBTQ+ issues the 11th Circuit Court considered in the past week; Wood v. Florida Dept. of Education, issued just one day earlier, determined that a transgender teacher’s free speech rights were not violated by a state mandate to keep her “preferred pronouns” quiet in the classroom.
In that case, a 2-1 split court found that because the worker was using such speech with students in the classroom during school hours, she was speaking in her capacity as a government employee.
