First Amendment Clinic files amicus brief in case involving government employee speech
The clinic’s brief supports the petition of a government employee who was demoted after providing truthful testimony during a custody hearing.
Duke Law School's First Amendment Clinic filed an amicus brief in early October, urging the U.S. Supreme Court to grant certiorari in Butler v. Board of County Commissioners for San Miguel County, a case involving the First Amendment protection of government employee speech.
Clinic students Bailey Cage and Luke Van Holten, both 3Ls, worked on the brief during the fall semester under the supervision of Ian Kalish, the First Amendment Fellow; Nicole Ligon ’16, the clinic’s supervising attorney; and Professor H. Jefferson Powell, the clinic’s director.
The clinic’s brief supports the petition of a government employee who was demoted after providing truthful testimony during a custody hearing. The Tenth Circuit found that, even though the employee was speaking as a citizen outside of his job responsibilities, the content of the employee’s testimony was not on a matter of public concern and so did not qualify for First Amendment protection.
According to the clinic, Supreme Court guidance is needed to resolve three distinct circuit splits that have developed regarding how courts determine if government employee speech is on a matter of public concern. The clinic further argued that the speech at issue was on a matter of public concern, and that the Tenth Circuit incorrectly concluded that the First Amendment did not apply.
The clinic stressed the importance of clarifying this legal framework because individuals do not sacrifice their right to freedom of speech by becoming government employees. While government employers are able to take certain employment actions without implicating the First Amendment, it is important that the speech of citizens outside the workplace is not unduly restricted.
A copy of the amicus brief can be found on the website of the Supreme Court.