Regulating Political Signs and Speech: Responding to First

Regulating Political Signs and Speech:

Responding to First Amendment

and Land Use Challenges

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.

THURSDAY, JUNE 21, 2018

Presenting a live 90-minute webinar with interactive Q&A

Elena Q. Gerli, Partner, Aleshire & Wynder, El Segundo, Calif.

Alan C. Weinstein, JD, Director of Law & Public Policy Program, Cleveland-Marshall College of Law

and Maxine Goodman Levin College of Urban Affairs at Cleveland State University, Cleveland

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-871-8924 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail [email protected] immediately so we can address

the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 2.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

Regulating Political Signs AfterReed v. Town of Gilbert

June 21, 2018

Professor Alan Weinstein

Cleveland-Marshall College of Law and

Maxine Goodman Levin College of Urban Affairs

Cleveland State University

[email protected]

6

What We’ll Cover

• Basic 1st Amendment issues when

regulating political signs

• The Reed v. Town of Gilbert decision

• Court rulings since Reed

• Responding to Reed: Basic Do’s and

Don’ts

7

First Amendment in Sign Regulation

• Government regulation of political signs loses the normal

presumption of constitutionality and is subject to

heightened scrutiny

• Government has greater leeway regulating political signs

on public property vs. on private property

• Most sign ordinances contained at least a few provisions

of questionable constitutionality even before Reed …

and much more after

• Sign litigation is common, expensive, and risky

8

Public Forum Analysis

• Classifications of public property

– Traditional public fora: sidewalks and public parks, content neutrality required

– Designated public fora: content neutrality required

– Limited public fora: viewpoint neutrality required, reasonable in light of forum’s purpose

– Nonpublic fora/nonforum: viewpoint neutrality required, reasonable in light of forum’s purpose

9

Content NeutralityViewpoint Neutrality

• Content neutrality looks at subject matter

• Viewpoint neutrality looks at point of view

– a ban on all signs is content neutral and viewpoint neutral

– a ban on all political signs is not content neutral but is viewpoint neutral

– a ban on signs that criticize government is neithercontent neutral nor viewpoint neutral

10

Regulating Signs on Public Property

• City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) – allows content-neutral time,

place or manner regulations of signs on public property – or even prohibition of all signs on public property

– BUT … Vincent’s allowance of a ban does not apply if public property is a traditional public forum.

• See, e.g., Flaherty v. Knapik, 999 F.Supp.2d 323 (D.Mass. 2014) (“tree-belt” found to be a traditional public forum)

11

Typical Ordinance “A”

Definitions

• Political Sign - A temporary sign or handbill erected prior to, and referencing specific individuals or issues in, a pending election, excluding leased space on the face of permanent, legal, off-site advertising signs (billboards).

• Real Estate Sign - A sign which advertises the sale, rental or lease of the property on which it is maintained.

Exempted from Permit Requirement

• Freestanding on-site real estate

signs 12 square feet or less in

area, having a maximum panel

length or height of eight feet

(excluding real estate tract signs);

• Other signs, including political and "no trespassing" signs, having noncommercial messages and not exceeding two square feet in area on any lot.

12

Typical Ordinance “B”

• No temporary political sign face shall exceed thirty-two (32) square feet in area. The aggregate area of all temporary signs placed or maintained on any lot in one ownership shall not exceed ninety-six (96) square feet.

• Temporary political signs shall not be posted sooner than 90 days prior to a scheduled election administered by the County Elections Department. Said signs shall be removed within 10 days after the election.

13

Reed v. Town of Gilbert, AZ

• 587 F.3d 966 (9th Cir. 2009), on remand, 832 F.Supp.2d 1070 (D. Ariz. 2011), affirmed, 707 F.3d 1057 (9th Cir. 2013), reversed and remanded, 135 S.Ct. 2218 (2015).

14


• “Temporary Directional Signs Relating to a Qualifying Event

(non-profit)”

– 6 s.f. sign allowed for 12 hrs before/1 hr after event

– no more than 4 signs on any property (w/ owner’s

consent)

• “Political Signs”

– unlimited number of signs up to 32 s.f.

– no time limit before election - removal 10 days after

• “Ideological Signs”

– Unlimited number/time for signs up to 20 s.f.

15

16

Content-neutralityCircuit Split

“Need to Read” – 8 & 11

• Do you have to look at the

message to determine if the

rule applies?

• If so, it is content-based.

– political or election signs

– real estate signs

– directional/Identification signs

– instructional signs

– construction signs

– nameplate signs

– price signs

– home occupation signs

“No-censorship” – 3, 4, 6, 7 & 9

• Is the government trying to

regulate or censor content?

• If not, it is content-neutral

because:

– local government needs some

leeway in navigating through

First Amendment law

– a limited number of content-

based provisions that are not

intended to censor or restrict

speech is acceptable

17


• Court rules 9-0 that challenged code

provision is unconstitutional

• 6-3 majority opinion (Thomas, joined by

Roberts, Scalia, Kennedy, Alito &

Sotomayor), plus concurrence by Alito w/

Kennedy & Sotomayor)

• Breyer and Kagan (joined by Breyer and

Ginsburg) each file opinion concurring only in

the judgment18

Reed v. Town of Gilbert, AZMajority Opinion

• “On its face” Rule: If you have to read the

message displayed to determine how a sign is

regulated, then that regulation is content-based.

• “Some facial distinctions based on a message are

obvious, defining regulated speech by particular

subject matter, and others are more subtle,

defining regulated speech by its function or

purpose. Both are distinctions based on the

message a speaker conveys, and, therefore, are

subject to strict scrutiny.”

19


Plus … a “facially” content-neutral

regulation will be considered content-based

if:

▪ a regulation can’t be justified without

reference to the content … or

▪ a regulation was adopted because of

disagreement with the message conveyed

20


If a sign regulation is content-based, it is

subject to strict scrutiny …

•Presumed unconstitutional … so gov’t

bears burden of proof/persuasion to show

the regulation:

– Serves a compelling governmental interest

– Narrowly-tailored to achieve that interest …

not over-inclusive or under-inclusive and

uses “least restrictive means”21


Categorical

signs are

“content-based”

– political/election signs

– real estate signs

– directional/identification signs

– instructional signs

– construction signs

– nameplate signs

– price signs

– home occupation signs

22


“Speaker-

based” or

“Event-based”signs are

“content-based”

• “displayed on a lot

with a property for

sale or rent”

• “displayed on a lot

where construction

is taking place”

• “60 days before a

primary or general

election”

23


So what does that all mean?

▪ Fact that government’s purpose or

justification for regulation had nothing to

do with trying to limit or censor speech

does not matter

▪ Strict scrutiny usually means gov’t loses

– aesthetics and traffic safety held not to be

compelling governmental interests24


Still lots that government can do …

▪ “regulate many aspects of signs that have

nothing to do with a sign’s message”

▪ prohibit signs on public property, so

long as regulation is content-neutral

▪ certain signs may be essential (e.g., for

safety purposes) and “well might survive

strict scrutiny” 25


Justice Alito’s Concurrence

“Here are some rules that would not be

content-based”

size and location, including placement on private property vs. public property

lighting fixed vs. changing message, including

electronic

on-site vs. off-site rules restricting total # of signs per mile of

roadway

“rules imposing time restrictions on signs advertising a one-time event”

Government “may put up all manner of signs to promote safety, as well as directional

signs and signs pointing out historic sites and scenic spots.” 26

Case Study: Effect of ReedWagner v. City of Garfield Heights, OH

• Wagner puts-up a 16 s.f. sign reading: “You do the math: Traffic Camera’s + Rubbish Trash = Mahoney Baloney.”

• City code limited individualpolitical signs to 6 s.f., but allowed multiple signs per lot based on frontage(s)

• City code also limited any sign in residential districts to 12 s.f.

27


• Dist. Ct. finds code is content-neutral, applies intermediate scrutiny and rules code is not narrowly-tailored because more smaller signs are not any better than one large sign 2011 WL 5037206 (N.D. Ohio)

28


• 2013: Dist Ct. subsequently rules code is content-based and neither advanced compelling interests nor was narrowly-tailored 2013 WL 12099080

• 2014: 6th Cir. reversed/remanded, found code was content-neutral and survived intermediate scrutiny. 577 Fed. Appx. 488 (6th Cir. 2014).

• 2015: Reed v. Town of Gilbert decided.

• 2015: S.Ct. vacates 6th Cir. ruling and grants cert. in Wagner. 135 S.Ct. 2888 (2015).

• 2017: 6th Cir. applies Reed, holds code is content-based, city’s interests are not compelling and code not narrowly-tailored. 675 Fed. Appx. 599 (6th Cir. 2017).

29

Problem AreaExemptions

• Marin v. Town of Southeast, 136 F.Supp.3d 548 (S.D.N.Y. 2015) - code that exempted certain signs, but not political signs, from restrictions placed on temporary signage, was content-based and failed strict scrutiny

• Grieve v. Village of Perry, 2016 WL 4491713 (W.D.N.Y.) …code that required permit for non-commercial signs but not for commercial signs, was content-based and failed strict scrutiny

30

Not a Problem AreaTime, Place & Manner Regulations

• Peterson v. Vill. of Downers Grove, 2015 WL 8780560 (N.D. Ill. Dec. 14, 2015) - upheld a content-neutral ban on all painted wall signs

• Vosse v. The City of New York, 144 F.Supp.3d 627 (S.D.N.Y. 2015), aff’d, 666 Fed.Appx. 11 (2d Cir. 2016), cert. den., 137 S.Ct. 1231 (2017) - upheld content-neutral ban on signs extending more than 40 feet above curb level as a reasonable time, place, and manner restriction on speech

31


• Shaw v. City of Bedford, IN., 2017 WL 2880117 (S.D.

Indiana. 2017)

– “flags” displayed at an individual residence restricted to 15

s.f. each and combined area of 60 s.f.

– “temporary signs” displayed at an individual residence

restricted to 6 s.f. each and combined area of 36 s.f.

– “permanent signs” are prohibited in residential areas except

at entrances to residential developments … the combined s.f.

of the permitted signs depends on the acreage of the

development

32


• Shaw v. City of Bedford, IN., 2017 WL 2880117 (S.D.

Indiana. 2017)

The court upheld the regulations under intermediate

scrutiny and cited Reed as recognizing that content-

neutral regulations may be used by municipalities “to

resolve problems with safety and aesthetics” associated

with signs. 135 S.Ct. 2218, 2232 (2015)

33

Political/Residential Signs

Political or Protest Signs in Residential Areas

• City of Ladue v. Gilleo, 512 U.S. 43 (1994)

– City banned all residential signs, with 10 exceptions – reducing visual clutter

– Held: ban violates the First Amendment

– “Displaying a sign from one's own residence carries a message quite distinct from placing the same sign someplace else.”

34

Political (Campaign) Signs

• Most sign ordinances have special rules for “Political Signs”

• Common claim: “It is content neutral because it treats all

candidates and issues identically.”

• WRONG. It is not content neutral because it is identifying a

“category” of signs based on the content displayed on the sign

35


Time Limits on Display of Political Signs?

• Most common serious error in sign regs

• When challenged, almost always invalidated

• Courts will not tolerate time limits on display of political speech

• Reasonableness of display time is NOT the issue!

• Political messages must be allowed at all times

36

Limits on Number, Size and Height

• Size and Height – limits usually approved if there is no favoring of commercial speech

• Size rule should be cumulative for all signs on a given location

• Limit on number – unconstitutional in most court decisions


37

How to “Get There”

• Allow any and all types of noncommercial speech on signs at all times – do not categorize beyond “noncommercial”

• OK to have reasonable size limits on signs … both single sign and cumulative total

• Optional: increase the allowable display area per parcel for all noncommercial signs for period of specified length … but not defined by reference to election campaign time period


38

www.Ricardopacheco.com v. City of Baldwin Park, 2017 WL 2962772 (C.D.Cal.)

• “For 45 days before and 14 days after any election for which there are polling places operating in the City, five additional signs of up to 12 square feet and four feet tall may be displayed.” emphasis added

• “While the Election Provision seemingly seeks to increase political speech around

elections, that does not preclude a finding that the provision is a content-based

regulation of speech. Indeed, the Supreme Court has “repeatedly rejected the

argument that discriminatory ... treatment is suspect under the First Amendment

only when the legislature intends to suppress certain ideas Reed, 135 S. Ct. at 2229

(quotation marks omitted). Even though “[t]his type of ordinance may seem like a

perfectly rational way to regulate signs, ... a clear and firm rule governing content

neutrality is an essential means of protecting the freedom of speech, even if laws

that might seem entirely reasonable will sometimes be struck down because of

their content-based nature.” Id. at 2231

Political (Campaign) Signsbut not defined by reference to election campaign time period

39

http://www.ricardopacheco.com/

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2036476806&pubNum=0000708&originatingDoc=I52be7a40675711e7b7978f65e9bf93b3&refType=RP&fi=co_pp_sp_708_2229&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_2229

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2036476806&pubNum=0000708&originatingDoc=I52be7a40675711e7b7978f65e9bf93b3&refType=RP&fi=co_pp_sp_708_2231&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_708_2231

Basic Do’s and Don’ts After Reed

DO

• review code to identify content-based regulations; e.g. “categorical” regs.

• add a severability clause and a substitution clause if you do not have one

• have a strong purpose clause and link that to regulations

DON’T

•enforce content-based

regulations

•enact a moratorium on all

sign permits … narrower

focus and shorter time is

always better

40

DefiBasic Do’s and Don’ts After Reed

Do regulate by “physical” characteristics

✓ freestanding signs

✓ pole

✓ monument

✓ temporary vs. permanent signs

✓ portable signs

✓ “snipe” signs

✓ “blade” signs

✓ building signs

✓ roof or wall or parapet

✓ window

✓ marquee/awning

✓ projecting and suspended

✓ “A-frame” signs

✓ “wind-signs”

Don’t regulate by “category”or “speaker”

X political or election signs

X real estate signs

X directional/identification signs

X instructional signs

X construction signs

X nameplate signs

X price signs

X home occupation signs

41

It’s not just about Reed . . .other issues in sign regulation

42

What should be in a sign code?

• Regulatory Purposes

• Substitution and

Severability Clauses

• Definitions

• Standards for measuring

sign areas/heights

• Regulations for:

– sign placement

– height/area

– setback/spacing/density

– type/time of lighting

▪ Regulations for:– billboards, etc. (??)

– temporary/portable signs

– window/awning signs

▪ Prohibited signs (??)

▪ Non-conforming signs

▪ Administration– Permitting provisions

– Variances

– Appeals

▪ Enforcement

43

Regulatory Purposes

A. To allow businesses, institutions, and individuals to exercise their right to free speech by displaying an image on a sign, and to allow audiences to receive such information.

B. To promote and maintain visually attractive, residential, retail, commercial, historic open space and industrial districts.

C. To provide for reasonable and appropriate communication and identification for on-premise signs in commercial districts in order to foster successful businesses.

D. To provide for reasonable and appropriate communication for on-premise signs within industrial districts.

E. To encourage the use of creative and visually attractive signs.

F. To ensure that signs are located and designed to reduce sign distraction and confusion that may be contributing factors in traffic congestion and accidents, and maintain a safe and orderly pedestrian and vehicular environment.

G. To protect property values.

H. To promote the public health, safety and welfare by avoiding conflicts between signs and traffic control devices, avoiding traffic hazards, and reducing visual distractions and obstructions.

I. To protect and preserve the aesthetic quality and physical appearance of the community.

44

Message Substitution Clause

The owner of any sign which is otherwise allowed by

this sign ordinance may substitute non-commercial

copy in lieu of any other commercial or non-

commercial copy. This substitution of copy may be

made without any additional approval or permitting.

The purpose of this provision is to prevent any

inadvertent favoring of commercial speech over non-

commercial speech, or favoring of any particular

non-commercial message over any other non-

commercial message. This provision prevails over

any more specific provision to the contrary.45

Message Substitution Clause

“A non-commercial message may be

substituted for any commercial message

displayed on a sign, or the content of any

non-commercial message displayed on a

sign may be changed to a different non-

commercial message, without the need for

any approval, provided that the size of the

sign is not altered.”

46

Severability Clause

“If any part, section, subsection,

paragraph, subparagraph, sentence,

phrase, clause, term, or word in this

code is declared invalid, such invalidity

shall not affect the validity or

enforceability of the remaining portions

of the code.”

47

Elena Q. Gerli

[email protected]


“On its face” Rule: If you have to read the

message displayed to determine how a sign is

regulated, then that regulation is content-based.

“Some facial distinctions based on a message are

obvious, defining regulated speech by particular

subject matter, and others are more subtle,

defining regulated speech by its function or

purpose. Both are distinctions based on the

message a speaker conveys, and, therefore, are

subject to strict scrutiny.”

49


However, plenty of content-neutral ways to

regulate temporary signs, including size,

location, building materials, lighting, moving

parts, portability, and time limits for signs

advertising one-time events (Alito, concurring)

Location: free-standing vs. wall signs;

commercial vs. residential properties; on-

premises vs. off-premises

50

What is a city to do?

Regulate temporary signs rather than

political signs

51

Suggested practices

• Prohibit posting of signs on public property

• On-premises vs. off-premises signs

• Prohibit off-premises signs altogether

• Time limits for on-premises signs on

commercial/industrial properties

• Limited regulations for temp signs on

residential properties – cannot prohibit!

• Size, setback, prohibit moving parts/smoke/noise

etc., dilapidated signs

52

Post election removal

• Make removal requirement hinge on date of

event the sign relates to?

• Applies to all temporary signs that relate to an

event with an end date

• Justice Alito thinks this is an acceptable

limitation. But is it?

• Political signs may be a form of expression

unrelated to the specific election

53

Permits and fees

• Permits/fees for on-premises temp signs are common for commercial/industrial properties; over-the-counter applications

• Commercial and industrial properties not likely to clutter with election signs

• Could require permits for residential properties too, except: reality!

• Most residential properties will remove signs after election season

• A property with a lot of signs = public nuisance?

54

Mandatory disclosure of sponsorship

• May be constitutional for commercial

speech signs

• Not likely to be a problem

• But for noncommercial speech, cannot

compel speaker to identify self on the sign

55

Electioneering

• Prohibiting display of campaign materials

and electioneering (i.e., solicitation of votes)

within 100 feet of entrance of polling places

is narrowly tailored to serve the compelling

state interest in preventing voter

intimidation and election fraud.

• Survives strict scrutiny.

Burson v. Freeman, 504 U.S. 191 (1992)

56

Public Employee Speech

and the First Amendment

57

Regulation of signs = government acting

as sovereign

Government also functions as:

Educator

Landlord

Market participant

Speaker

Employer

58

Government as employer

Forum analysis does not apply

Government does not have the same

ability to curtail speech of employees

as private employer

Public employees’ speech is protected

*because government is employer

59

First Amend. rights protected (1)

• Union activities

• Join, or advocate joining, a union; or

• To refuse to fund the union’s political speech

• Can require dues, but cannot require dues for the

purposes of funding political activities

• Protections in addition to labor laws

• Not an absolute right; reasonable limitations

may be imposed

60


The freedom of political association

◦ Cannot dismiss (or make other employment

decisions) based on employee’s political beliefs or

associations

◦ California: can only prohibit political activities

during working hours

Exception

◦ Policymaking or confidential positions (e.g., agency

heads, personal secretaries, speech writers)

◦ Applies when position supports manager or

elected official in establishing/implementing policy61

Hatch Act: Prohibits federal civil service

employees (+state/local) from

◦ Using their official authority to interfere

with/affect elections

◦ Receiving political contributions (limited

exceptions)

◦ Running for partisan political office

◦ Discouraging political actions of certain

persons


62

The free exercise of religion in the

workplace

◦ Limits ability to impose disciplinary action on

employee’s religious beliefs or affiliations (e.g.,

working on a religious holiday)

Title VII of the Civil Rights Act

Cal. Const. Art. I, Sec. 4; Fair Employment

and Housing Act

State religious freedom restoration acts


63

The right to speak out about work matters

that are of public concern

What constitutes a public concern:

◦ Fact-specific determination, based on content, form, and context of a given statement.


64

When is public employee’s speech

protected?

Test:

1. Involved a matter of public concern

2. Not made pursuant to official job duties

3. Substantial or motivating factor in the adverse action

Pickering balance:

1. Does employee’s speech interest outweigh the govt’s legitimate interest?

2. Employer would not have reached adverse employment action absent the protected speech

65

If the speech

*is a matter of public concern

Pickering balance: employee’s interest against govt’s interest in efficiency Legit govt interests: maintaining

discipline, promoting harmony, confidentiality, efficiency of public functions, and maintaining relationships between supervisors and employees that call for personal loyalty and confidence◦ Must show evidence of disruption

No legit interest in stifling comment on corruption

66

*Is a public concern

• Discussing with coworkers pressure to work in political campaigns

• Writing a letter to a paper regarding misallocation of agency funds among depts

• Publicizing a teachers memo re teacher dress and appearance

• Saying to a friend that the employee wished the President had been assassinated. Rankin v. McPherson, 483 U.S. 378 (1987)

67

Is *not a public concern

• Speech aimed at gathering ammunition against the employer

• Employee grievances regarding internal office policy

68

…not necessarily protected

• Even if the speech relates to a public concern, a disruption to the efficient functioning of the agency might not be protected

• Employer may dismiss or discipline the employee without impermissibly chilling the employee’s free speech rights.

69

Exception: Speech pursuant to

employment

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.

70

Garcetti v. Ceballos, 547 US 410 (2006)

Ceballos was a DDA.

Wrote a disposition memo in which he

recommended dismissal of a case on the

basis of purported governmental

misconduct

DA proceeded with prosecution

DA’s Office too allegedly retaliatory actions.

71

Garcetti v. Ceballos

“It is well settled that a State cannot condition

public employment on a basis that infringes the

employee's constitutionally protected interest

in freedom of expression. The question

presented by the instant case is whether the

First Amendment protects a government

employee from discipline based on speech

made pursuant to the employee's official

duties.”72

Garcetti v. Ceballos – speech pursuant

to employment

Memo was internal – the fact that it was

not disclosed to the public not dispositive.

◦ Can be protected for speech made at work only

Subject matter of memo concerned

Ceballos’ employment also not dispositive.

◦ Can be protected, e.g., speech by teachers about

how funds are spent

73

Garcetti v. Ceballos

“The controlling factor in Ceballos' case is that

his expressions were made pursuant to his

duties as a calendar deputy. … That

consideration—the fact that Ceballos spoke as

a prosecutor fulfilling a responsibility to advise

his supervisor about how best to proceed

with a pending case—distinguishes Ceballos'

case from those in which the First Amendment

provides protection against discipline.”

74

Connick v. Meyers, 461 U.S. 138 (1983)

• Refused to accept a transfer• Distributed a questionnaire to co-workers re

office transfer policies, office morale, need for a grievance committee, level of confidence in supervisors, and whether employees felt pressure to work in political campaigns.

• Fired for refusal to transfer and for insubordination

• Court held: questionnaire re employment dispute, not matter of public concern (except for political campaigns question). On balance, disruption to efficient function outweighed employee’s 1A

75

Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009)

Sued DA for retaliation for exercising his 1A right to comment on a school project and leaks to the IRS, and to speak through his attorney to the press

Demoted, suspended without pay, charged with misdemeanor crimes, investigated for sexual harassment, denied full benefits, passed over for promotion

Held: Properly alleged a violation of 1Arights on both counts; no qualified immunity

76

Eng v. Cooley

(1) Speech addressed a matter of public concern

DA’s office conceded speech addressed matter of public concern

“Communications on matters relating to the functioning of government are matters of inherent public concern.”

77

Eng v. Cooley

(2) Speech was not made pursuant to Eng’sofficial duties, but as private citizen “Here, there can be no doubt that Eng's

version of the facts plausibly indicates he had no official duty to complain about any leak to the IRS or to authorize [his attorney] to speak to the press about the retaliation being taken against him.”

78

Eng v. Cooley

(3) Adverse employment actions were taken in retaliation of the speech Court concluded that Eng’s speech was a

substantial or motivating factor behind retaliatory actions, based on timing and context

79

Eng v. Cooley

(4) Balance of interests in favor of employee DA waived argument, and “Defendants have neither alleged nor

offered any evidence to support a conclusion that investigating, suspending, prosecuting, or transferring Eng for his speech was “necessary for the [DA]’s office to operate efficiently and effectively.”

80

Eng v. Cooley

(5) But-for causation Disciplinary actions taken on basis of

criminal prosecution and sexual harassment investigation

But, both prosecution and investigation were themselves motivated by Eng’sprotected speech

81

State and city laws

✓State government regulations

✓State constitutions

✓City ethics codes: ordinances, administrative

policies

✓Federal and state whistleblower statutes

✓Labor and employment laws/collective

bargaining agreements

82

Documents

Regulating Political Signs and Speech: Responding to First