Randall Brickey v. Robb Hall , 828 F.3d 298 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1910
RANDALL E. BRICKEY,
Plaintiff - Appellee,
v.
ROBB HALL,
Defendant – Appellant,
and
DICKIE DYE; T. MICHAEL TAYLOR; ERIK C. PUCKETT; NEIL
JOHNSON; C. TODD YOUNG; TOM HOLLY; VINCENT MAIDEN,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen E. Conrad, Chief
District Judge. (1:13−cv−00073−GEC−PMS)
Argued: December 10, 2015 Decided: July 8, 2016
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Reversed and remanded by published opinion. Judge Diaz wrote
the opinion, in which Judge Duncan and Judge Keenan joined.
ARGUED: Jeremy E. Carroll, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Edward Kyle McNew,
MICHIEHAMLETT PLLC, Charlottesville, Virginia, for Appellee. ON
BRIEF: Andrea Kay Hopkins, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Hilary K. Johnson, Abingdon,
Virginia, for Appellee.
2
DIAZ, Circuit Judge:
Police officer Randall Brickey was fired for comments he
made as a candidate for town council that were critical of his
employer, the Saltville Police Department, and its Police Chief,
Rob Hall. Brickey filed suit under 42 U.S.C. § 1983 for
retaliatory discharge in violation of the First Amendment. The
district court denied Hall qualified immunity, and this
interlocutory appeal followed. Because it was debatable at the
time of Brickey’s dismissal that his speech interests as a
citizen outweighed Hall’s interests as a public employer, we
conclude that Hall is entitled to qualified immunity. We
therefore reverse.
I.
A.
Brickey was an officer with the Saltville Police Department
from December 1, 2006, to May 21, 2012, the day his employment
was terminated. Hall became Police Chief in July 2011, taking
over a department struggling with well-publicized problems of
financial mismanagement, officer misconduct, and a general lack
of professionalism. In an effort to improve the department’s
operations and public image, Hall instituted several policy
changes, including increased foot patrols, a stricter dress
code, and new payroll procedures.
3
In early 2012, Brickey decided to run for Saltville Town
Council. He discussed the plan with Hall, who indicated that
the campaign would not cause employment problems so long as
Brickey did not campaign in uniform or disparage the department
in contravention of departmental policy.
During the campaign, two local newspapers posed questions
to the candidates, inviting them to submit responses for
publication. One paper provided this prompt: “Motivation for
seeking office/why should the voters choose you?” J.A. 337.
After identifying himself as a member of the Saltville Police
Department with twenty-three years of experience as a police
officer, Brickey responded in relevant part as follows:
I teach the D.A.R.E. [i.e., Drug Abuse Resistance
Education] Program at Saltville Elementary
School. . . . I went in to talk to Chief (Rob) Hall
about ordering the supplies for the D.A.R.E.
graduation. I was told there was no money to place
the order. After checking with the accounts payable
clerk to see where the $500 in the police department
budget had been spent, I was shown several invoices
that were charged to the D.A.R.E. account. The items
on the invoices had nothing to do with the D.A.R.E.
program. I also found, from looking at a copy of the
budget that I obtained from the town, that the town
receives $225,000 in highway maintenance funds from
the state. Only $3,000 is approved in the budget for
paving. Seeing this, along with the other misuse of
taxpayers’ money, shows me that we have a very poor
management at the council level and there needs to be
a change.
Id.
4
Next, in response to a question about the town’s “greatest
needs,” Brickey noted road paving, improved management of the
town pool, and the following changes to the Saltville Police
Department: “The town police department needs to be more
professional. Officers need to do more foot patrols during the
day shift and become more familiar with business owners. The
police department needs to be more [aggressive] on
investigations and focus more on drug trafficking.” Id.
Finally, Brickey responded to a question as to how to meet
those needs. He first noted that he had “been told by some
business owners in town during [his] campaign for town council
that they would like to see more foot patrols from the police
department, and would like to see the chief during daytime
hours.” Id. He went on to propose the addition of a full-time
investigator, stating that the town had a serious drug problem
and that he knew of “cases that need to be investigated by the
police department.” Id. Brickey’s statements were printed in
late April 2012.
About a week later, Hall informed Brickey that he believed
Brickey’s statements violated departmental policy. The alleged
violations of the Police Department Policy Manual included (1) a
failure to “display respect for [his] superior officers,
subordinates, and associates”; (2) “speak[ing] rumors
detrimental to the department or another employee”; (3) “us[ing]
5
or attempt[ing] to use [his] official position, badge or
credentials for personal or financial gain or advantage”;
(4) “communicat[ing] . . . information concerning operations,
activities or matters of police business, the release of
which . . . may have an adverse impact on the department image,
operations, or administration”; and (5) “criticiz[ing] or
ridicul[ing] the Department, its policies, or other employees by
speech . . . [that] undermines the effectiveness of the
Department, interferes with the maintenance of discipline, or is
made with reckless disregard for truth or falsity.” J.A. 352-
55, 357-70.
Hall hired Gary Reynolds—an out-of-state, former police
chief—to investigate the allegations and to determine whether
Brickey in fact violated departmental policies. Reynolds
interviewed Hall, Brickey, Assistant Chief Erik Puckett, the
Saltville town auditor, and the other five officers in the
police department. In speaking with Reynolds, Brickey withdrew
or attempted to clarify some of his statements. Asked about his
comments on the professionalism of the department, Brickey said,
“It’s not that I meant they are unprofessional, we just need to
be on patrol more.” J.A. 373. Regarding the D.A.R.E. comments,
Brickey admitted that the $500 was in fact accounted for in a
different line item of the budget. J.A. 384. He also conceded
that he “should have said mismanagement of funds versus misuse
6
of funds.” J.A. 387. Brickey insisted that his “statements
regarding the DARE account were not about Chief Hall, they were
about the [town] council members.” J.A. 383.
According to Reynolds’s investigation, Brickey’s statements
caused concern within the Saltville government and police
department. A town auditor interpreted Brickey’s statements as
alleging that Chief Hall was misusing funds. J.A. 381. This
“upset” the auditor, who, after looking into the matter, “found
no misuse of taxpayer money by Chief Hall.” Id. Some police
officers believed that the comments reflected poorly on the
department, though at least two officers told Reynolds that they
had not read Brickey’s comments. J.A. 381-83, 386.
In Reynolds’s final estimation, Brickey’s statements to the
newspapers violated departmental policies. J.A. 387. According
to Reynolds, Brickey’s statements regarding the “misuse” of
D.A.R.E. funds “clearly ‘bad mouthed’ the Police Department and
especially the Police Chief, and thus were harmful to the public
trust of Chief Hall as well as his integrity.” Id. Moreover,
Reynolds faulted Brickey for failing to investigate properly or
verify his allegations that police funds were being misused.
J.A. 388. Specifically, Reynolds found that Brickey overlooked
the fact that the D.A.R.E. budget line item also included funds
for “Community Relations,” and that the invoices Brickey
observed were for legitimate community-relations expenses. Id.
7
After notifying Brickey of the results of the
investigation, Hall held a meeting with Brickey, Reynolds, and
Puckett in which Brickey was given an opportunity to respond to
the allegations and the findings of the report. On May 21,
2012, Hall terminated Brickey’s employment. Brickey pursued the
department’s grievance procedures to no avail.
B.
Brickey filed suit under § 1983, naming as defendants Hall
and a number of other individuals who played a role in his
dismissal. In addition to his First Amendment retaliatory-
discharge claim, Brickey also asserted procedural and
substantive due-process claims. The due-process claims were
dismissed on a 12(b)(6) motion, as was a request for punitive
damages. The retaliatory-discharge claim survived, and the
defendants later moved for summary judgment, attacking the claim
on the merits and also asserting qualified immunity. The
district court granted the motion in part and denied it in part.
Brickey v. Hall, No. 1:13-CV-00073, 2014 WL 4351602, at *9 (W.D.
Va. Sept. 2, 2014). Summary judgment was granted as to all
defendants except Chief Hall—none of the other officials, the
court held, had “caused” Brickey’s injury, as Hall was the lone
decisionmaker. Id. at *8.
As to Hall, the district court denied qualified immunity.
Id. The district court first held that, taking the record in
8
the light most favorable to Brickey, Hall violated Brickey’s
First Amendment rights. Id. at *4–7. Having found a violation,
the district court determined that Brickey’s right not to be
fired for his speech was clearly established at the time of his
termination. Id. at *7–8. Relying on Citizens United v. FEC,
558 U.S. 310 (2010), the court stated that political speech was
clearly entitled to strong protection. Id. at *8. And relying
on Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), the court
stated that public employees’ speech regarding governmental
misconduct warrants protection. Id.
This interlocutory appeal followed. 1
II.
We review de novo the denial of qualified immunity. Altman
v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003).
Qualified immunity shields government officials from
personal liability when “their conduct does not violate clearly
established . . . rights of which a reasonable person would have
known.” Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014)
1 Although “interlocutory appeals are generally disallowed,
‘a district court’s denial of a claim of qualified immunity, to
the extent that it turns on an issue of law, is [immediately
appealable] notwithstanding the absence of a final judgment,’
under the collateral-order doctrine.” Iko v. Shreve, 535 F.3d
225, 234 (4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S.
511, 530 (1982)).
9
(quoting Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam)).
That is, qualified immunity protects government officials when
they act in legal “gray areas.” Id. (quoting Occupy Columbia v.
Haley, 738 F.3d 107, 118 (4th Cir. 2013)). An official is
entitled to qualified immunity unless “(1) the allegations
underlying the claim, if true, substantiate [a] violation of a
federal statutory or constitutional right; and (2) this
violation was of a clearly established right of which a
reasonable person would have known.” Id. at 308 (quoting
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306
(4th Cir. 2006)). While a case directly on point is not
required for a court to conclude that the law was clearly
established, “existing precedent must have placed the . . .
constitutional question beyond debate.” Id. (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011)). The burden of proof
rests with the official asserting the defense. Durham, 737 F.3d
at 299.
Brickey alleges retaliatory discharge in violation of the
First Amendment. On appeal, Hall does not challenge the
district court’s holding that Brickey has properly alleged a
constitutional violation—the first qualified-immunity prong.
Instead, Hall contends that the right Brickey asserts was not
clearly established in 2012 when Brickey was terminated. Our
review, therefore, is confined to the question of what law was
10
clearly established—we do not reach the merits of Brickey’s
constitutional claim.
A First Amendment retaliation claim poses three questions:
(1) whether the public employee was speaking as a
citizen upon a matter of public concern or as an
employee about a matter of personal interest;
(2) whether the employee’s interest in speaking upon
the matter of public concern outweighed the
government’s interest in providing effective and
efficient services to the public; and (3) whether the
employee’s speech was a substantial factor in the
employee’s termination decision.
McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998). The third
question is not in dispute; Hall concedes that he terminated
Brickey because of his speech. But Hall contends that the law
was not clearly established on the first two questions.
Because we hold that the law was not clearly established as
to the second question—the balancing of the employee’s and
employer’s interests—Hall is entitled to qualified immunity.
Consequently, we need not reach the question of whether it was
clearly established that Brickey spoke as a citizen on a matter
of public concern.
A.
Under the Supreme Court’s decision in Pickering v. Board of
Education, a court’s charge in a First Amendment retaliation
case is “to arrive at a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in
11
promoting the efficiency of the public services it performs
through its employees.” 391 U.S. 563, 568 (1968). The public’s
interest in hearing the employee’s speech also weighs in the
balance: “A stronger showing of public interest in the speech
requires a concomitantly stronger showing of government–employer
interest to overcome it.” McVey, 157 F.3d at 279 (Murnaghan,
J., concurring). 2
“The Pickering balance requires full consideration of the
government’s interest in the effective and efficient fulfillment
of its responsibilities to the public.” Connick v. Myers, 461
U.S. 138, 150 (1983). Prior to Brickey’s termination, the test
for striking the appropriate balance was clear:
“[W]e must take into account the context of the
employee’s speech” and “the extent to which it
disrupts the operation and mission” of the
institution. Factors relevant to this inquiry include
whether a public employee’s speech (1) impaired the
maintenance of discipline by supervisors; (2) impaired
harmony among coworkers; (3) damaged close personal
relationships; (4) impeded the performance of the
public employee’s duties; (5) interfered with the
operation of the institution; (6) undermined the
mission of the institution; (7) was communicated to
the public or to coworkers in private; (8) conflicted
with the responsibilities of the employee within the
institution; and (9) abused the authority and public
accountability that the employee’s role entailed.
2 At this point in his concurrence, Judge Murnaghan speaks
for a majority of the McVey panel. See 157 F.3d at 282 (Michael,
J., concurring in the lead opinion “except to the extent it is
qualified by Judge Murnaghan’s separate opinion”).
12
Ridpath, 447 F.3d at 317 (citation omitted) (quoting McVey, 157
F.3d at 278). The employer need not prove actual disruption,
“but only that an adverse effect was ‘reasonably to be
apprehended.’” Maciarello v. Sumner, 973 F.2d 295, 300 (4th
Cir. 1992) (quoting Jurgensen v. Fairfax Cty., 745 F.2d 868, 879
(4th Cir. 1984)).
It was clearly established in 2012 that police officials
are entitled to impose more restrictions on speech than other
public employers because a police force is “‘paramilitary’—
discipline is demanded, and freedom must be correspondingly
denied.” Id. (quoting Jurgensen, 745 F.2d at 880) (granting
qualified immunity to a police official who terminated two
officers for conducting an unauthorized investigation into
alleged evidence tampering in the police force). Because of
this heightened need for discipline, police officials have
“greater latitude . . . in dealing with dissension in their
ranks.” Id.
The key comments in this case involve the allegedly missing
D.A.R.E. funds. 3 As an initial matter, despite Brickey’s claim
3
We agree with the district court that it was clearly
established that Brickey’s other comments were entitled to First
Amendment protection. Statements that the department “needs to
be more professional,” “needs to be more [aggressive] on
investigations,” or ought to hire an investigator do not raise a
reasonable apprehension of disruption. J.A. 337. Not only do
these statements offer modest criticism of the department and
(Continued)
13
that he did not intend to impugn his chief, Hall could
reasonably have read the comments—as some others in Saltville
did—to accuse him of incompetence or even malfeasance. A town
auditor, for example, read the comments to allege misuse on the
Chief’s part, and (according to declarations given by Hall,
Assistant Chief Puckett, and the town manager) some members of
the police force and the public expressed concerns of police
misconduct in the wake of the articles. See J.A. 93 (Hall:
“Some residents also construed Brickey’s comments as accusing me
and the department of corruption and misusing funds.”); J.A. 312
(Puckett: “I was asked questions about the articles from members
of the public who expressed concern that officers were engaging
in misconduct.”); J.A. 316 (Town Manager: “Officers expressed
their belief that Brickey had accused them of improper
behavior . . . .”); id. (“Many people who commented about the
articles expressed concern that someone was stealing money from
the Town.”).
The clearly established principles outlined above did not
put the outcome of the Pickering balancing in this case “beyond
debate.” The context and the extent of disruption of the
D.A.R.E. comments weighed on both sides of the scale. First,
its chief, but they also touch on weaknesses of the department
that were already well known in Saltville.
14
Brickey spoke as a political candidate in a public forum. In
general terms, speaking as a political candidate weighs in favor
of speech. At the same time, however, the public nature of
Brickey’s comments increased their capacity for disruption.
Second, Brickey’s speech criticized a superior officer. As our
cases reflect, discipline and respect for superior officers are
critical in a police force. Because speech accusing a superior
officer of incompetence or malfeasance goes to the heart of the
superior’s authority, Hall could reasonably have believed that
Brickey’s comments would undermine his authority in the eyes of
the public and within the police department. See J.A. 316 (Town
Manager stating that “[b]ased on my observations of officers in
the Police Department, Brickey’s comments hampered morale and
discipline in the department”). Such a concern is amplified in
the close working conditions of a small police force, where
“mutual confidence and co-operation are essential.” Cooper v.
Johnson, 590 F.2d 559, 562 (4th Cir. 1979). Furthermore, Hall
was working to restore credibility to the department. He
reasonably could have believed that Brickey’s comments would set
back his efforts and increase public distrust in him and the
department as a whole. Finally, Reynolds conducted an
independent investigation of Brickey’s statements and concluded
that they “were harmful to the public trust of Chief Hall as
15
well as his integrity.” J.A. 387. Such a finding supports the
conclusion that Hall reasonably apprehended disruption.
In sum, the parties have not directed us to any case that
would have clearly warned Hall that terminating Brickey for his
comments about the D.A.R.E. funds would violate his First
Amendment rights. On the contrary, our case law had stressed
the broad discretion granted police officials to limit speech
when discipline is at stake. As a result, we cannot say that it
was beyond debate that Brickey’s interests outweighed Hall’s.
B.
Brickey’s counter-arguments are unpersuasive. He relies
principally on Citizens United v. FEC, 558 U.S. 310 (2010),
which held that the government may not prohibit corporate
expenditures to support or criticize political candidates. In
Brickey’s view, “[n]othing could have been more clearly
established in May 2012 than the sanctity of political speech.”
Appellee’s Br. at 28. However, such a broadly framed right
could not have answered the question facing Hall: when does a
police chief’s need to maintain discipline and harmony permit
him to infringe on an officer’s right to make public statements
as a political candidate insinuating wrongdoing by a superior
officer? See al-Kidd, 563 U.S. at 742 (stating that courts may
not “define clearly established law at a high level of
generality”).
16
While a case directly on point is not required to clearly
establish the answer to this question, Citizens United addresses
only one side of the Pickering scale, and it does so on very
different facts. Cases more closely on point have not treated
political speech as inviolate in the public-employment context.
See, e.g., Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013)
(holding that it was clearly established in 2009 that “a
reasonable sheriff could have believed he had the right to
choose not to reappoint his sworn deputies for political
reasons, including speech indicating the deputies’ support for
the Sheriff’s political opponent”); see also Waters v.
Churchill, 511 U.S. 661, 672 (1994) (plurality opinion) (“Even
something as close to the core of the First Amendment as
participation in political campaigns may be prohibited to
government employees.”).
Brickey next contends that Hall has nothing on his side of
the Pickering scale but “rank speculation,” and he likens the
anticipated disruption here to that in Smith v. Gilchrist and
Durham v. Jones. Appellee’s Br. at 31-32. 4 We have already
explained that Hall had a “reasonable apprehension” of
4Both Smith and Durham were published after May 21, 2012
(the date of Brickey’s termination), but they held that certain
rights were clearly established prior to that date. While the
cases could not have assisted Hall, we are nevertheless bound by
their holdings.
17
disruption, 5 and we now explain why Smith and Durham are
distinguishable.
In Smith, an assistant district attorney (“ADA”) running
for public office gave a televised interview in which he
criticized a local defensive-driving program. 749 F.3d at 305.
Because completion of the program allowed ticketed drivers to
receive a “prayer for judgment continued,” the district
attorney’s office (the “government”) benefitted from the program
by a substantially reduced caseload. Id. When the district
attorney terminated the ADA’s employment soon after the
interview, the ADA brought a First Amendment retaliation suit.
Id. at 306.
In the district court, the government conceded that the ADA
“had forecasted evidence sufficient to establish that his
interest in speaking outweighed the government’s.” Id. at 309.
Nevertheless, the government argued that the outcome of the
balancing test was not clearly established in the ADA’s favor,
as the district attorney reasonably could have apprehended that
the ADA’s criticism of the defensive-driving program would harm
5
Brickey also contends that Hall effectively conceded a
lack of disruption by hiring Reynolds to conduct an
investigation. We disagree. Hiring an impartial investigator
in this circumstance, where Hall felt personally aggrieved, more
clearly reflects prudence than a lack of evidence.
18
the district attorney’s office by increasing its workload. Id.
at 307.
We rejected the government’s argument, relying largely on
its prior concession that “[t]here are no relevant facts to
challenge [the] finding that [the ADA’s] interest in speaking
outweighed the government’s interest in providing effective and
efficient services to the public,” but also further noting that
the government lacked “any evidence that [it] had any reason to
believe that [the ADA’s] interview would negatively affect the
efficiency or effectiveness of the DA’s office.” Id. at 309–10.
Here, Hall has not conceded the outcome of the Pickering
balancing test, and we have found that Hall, unlike the
government in Smith, had reason to believe that Brickey’s
comments would cause disruption.
In Durham, the right at issue was of public employees to
speak out on “serious governmental misconduct,” specifically, a
police officer’s right to accuse “high-ranking law enforcement
officials . . . of falsifying law enforcement reports and . . .
authorizing aggressive threats against a member of their own
agency if he persisted in his opposition to such a practice.”
737 F.3d at 303. Although the employer “paid lip service to
ostensible damage to office morale, relationships between
colleagues, and the function of the office generally,” we found
that the employer “was unable to articulate any way in which the
19
office would have been different or was actually different due
to [the employee’s] statements.” 737 F.3d at 302. Indeed, the
employer ultimately conceded that he had no reason to think that
the employee’s speech would prevent the police department from
carrying out its mission. Id. We held that the employer’s weak
evidence of disruption could not outweigh the importance of the
employee’s speech. Id. (“Serious, to say nothing of corrupt,
law enforcement misconduct is a substantial concern that must be
met with a similarly substantial disruption in the calibration
of the controlling balancing test.”).
Durham is not controlling for at least four reasons.
First, and most importantly, Hall has not merely “paid lip
service” to potential disruption to his police force, as we have
already explained. Unlike the employer in Durham, Hall could
reasonably have apprehended that the D.A.R.E. comments would
undermine his authority.
Second, Brickey’s speech did not clearly allege misconduct
of the same magnitude as that alleged in Durham. While the
possibility that $500 of public funds had been mislaid or even
misused may well have been significant to the citizens of
Saltville, Hall could reasonably have believed that it was not
the kind of “serious governmental misconduct” that our case law
had protected. Durham involved clear accusations that high-
ranking police officials were forcing officers to falsify
20
reports of incidents involving the officers’ use of force. Id.
at 296. Such a core abuse of the mission of a police department
is reasonably distinguishable from vague allegations of
mismanagement and even misuse of funds. 6
Third, Brickey claimed during the Reynolds investigation
that he never intended to accuse Hall of any wrongdoing. The
employee in Durham, by contrast, made unmistakable allegations
of misconduct with the intention of exposing the wrongdoing and
alerting the public. Knowing that Brickey did not intend to
expose misconduct, Hall could reasonably have believed that
Brickey’s speech did not deserve the same protection as that of
a whistleblower.
Fourth, Hall knew from the Reynolds investigation that
Brickey’s statements about the misuse of funds proved
misleading. As Brickey admitted, the D.A.R.E. funds were not
6 In holding that it was clearly established that the First
Amendment protects allegations of “serious governmental
misconduct,” Durham relies on Robinson v. Balog, 160 F.3d 183
(4th Cir. 1998). In Balog, which was available to Hall, public-
works employees suffered retaliation for their allegations that
a contributor to the mayor’s reelection campaign was illegally
rewarded with a contract to repair a landfill leachate pond and
subsequently failed to make the needed repairs. Id. at 184–85.
That these allegations of blatant, large-scale corruption
endangering public health were protected, see id. at 185, did
not clearly establish protection for Brickey’s statements.
Moreover, as in Smith and Durham, we based our decision to deny
qualified immunity in large part on “the lack of evidence
supporting the [government’s] interest in disciplining [the
employees] for their speech.” Id. at 189.
21
missing, and there were no improper charges to the account. 7 The
employee in Durham did not make such a concession to the
employer before his termination. Hall could reasonably have
believed that the inaccuracy of Brickey’s statements reduced
their value and increased his own interests in suppressing
future statements of the same kind. See Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46, 52 (1988) (“False statements of fact
are particularly valueless; they interfere with the truth-
seeking function of the marketplace of ideas, and they cause
damage to an individual’s reputation that cannot easily be
repaired by counterspeech, however persuasive or effective.”);
Piver v. Pender Cty. Bd. of Educ., 835 F.2d 1076, 1081 (4th Cir.
1987) (noting an employer’s need for “protection from false
7After oral argument, Brickey submitted a letter bringing
to our attention the Supreme Court’s recent decision in
Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016). See Fed.
R. App. P. 28(j). In Heffernan, “a government official demoted
an employee because the official believed, but incorrectly
believed, that the employee had supported a particular candidate
for mayor.” 136 S. Ct. at 1416. The Court held that even
though the employee had not supported the candidate—and
therefore had not engaged in a constitutionally protected
activity—he nevertheless was entitled to bring a First Amendment
retaliation claim because “the government’s reason for demoting
[an employee] is what counts.” Id. at 1418. According to
Brickey, Heffernan establishes the broad rule that “a mistake of
fact does not defeat a First Amendment retaliation claim,” even
when an employee makes factually inaccurate claims regarding his
employer. See Appellee’s 28(j) Letter. Heffernan lends Brickey
no support. Not only does the case assume without deciding the
merits of the First Amendment claim, see id. at 1419, but more
to the point, it simply does not address the issue of factually
inaccurate employee speech.
22
accusations that may prove difficult to counter given the
employee’s supposed access to inside information”).
III.
We hold that it was not clearly established on the date of
Brickey’s termination that his speech interests as a citizen
outweighed Hall’s interests as an employer. Hall is therefore
entitled to qualified immunity. Accordingly, we reverse the
district court’s denial of summary judgment and remand for entry
of an order consistent with this opinion.
REVERSED AND REMANDED
23