Milwaukee Deputy Sheriff's Ass v. David Clarke, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3298
M ILWAUKEE D EPUTY S HERIFF’S A SSOCIATION
and M ICHAEL S CHUH,
Plaintiffs-Appellants,
v.
D AVID A. C LARKE, JR.,
and E ILEEN R ICHARDS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 C 900—Patricia J. Gorence, Magistrate Judge.
A RGUED F EBRUARY 13, 2009—D ECIDED JULY 21, 2009
Before K ANNE, R OVNER, and E VANS, Circuit Judges.
K ANNE , Circuit Judge. The dispute in this case is
what one’s mother might have in mind when she
imparts the classic phrase, “Sticks and stones may break
my bones, but words will never hurt me.” Apparently,
Milwaukee County Sheriff David A. Clarke, Jr., did not
2 No. 08-3298
take this childhood lesson to heart. In the summer of 2005,
Sheriff Clarke posted on a roll-call bulletin board a quote
that at least one deputy, Michael Schuh, considered an
offensive challenge to his and his fellow officers’ courage.
Schuh fired back by publishing a two-sentence state-
ment challenging Sheriff Clarke’s courage. Sheriff
Clarke, apparently afraid that words would hurt him,
quickly responded by reassigning Schuh to a newly
created mission in one of Milwaukee’s most crime-ridden
neighborhoods.
Deputy Schuh sued Sheriff Clarke, claiming that
Clarke retaliated against him for engaging in protected
speech in violation of the First Amendment. Schuh also
claimed that a recent change to the department’s Con-
fidentiality Policy constituted an unlawful prior restraint.
We are sympathetic to Schuh’s position, and we con-
sider Sheriff Clarke’s response against Schuh to be exces-
sive. But there are limits to the First Amendment’s
protections when a public employee speaks, and because
we find that Schuh was speaking on a matter of purely
private concern, we agree with the district court that
summary judgment in Sheriff Clarke’s favor was appro-
priate.
I. B ACKGROUND
In late May 2005, the Milwaukee County Deputy Sheriff’s
Association (“MDSA”), which represents deputies and
sergeants employed by the Milwaukee County Sheriff’s
Office, learned that Sheriff Clarke was directing on-duty
officers to escort him to and from the Milwaukee
airport and to conduct personalized patrols of his home.
No. 08-3298 3
Believing the conduct to be an improper personal use of
the County’s limited resources—particularly during a
time when money was tight—MDSA president Roy Felber
conveyed the Association’s concerns to a reporter from
the Milwaukee Journal Sentinel. The record is unclear
whether the newspaper published a story about the
Sheriff at that time.1
A few weeks later, Sheriff Clarke posted a quote on a
roll-call board at the department, visible to most Sheriff’s
Office employees. Sheriff Clarke had posted quotations
and inspirational messages in the past, but this one had a
notably confrontational tone:
If you are afraid or have lost your courage, you
may go home, otherwise you will ruin the morale
of others.
Deuteronomy, Chapter 20, Verse 8
One deputy who read Sheriff Clarke’s “inspirational”
post was Michael Schuh, an eighteen-year veteran officer
who was then working as a bailiff. Schuh took offense to
Sheriff Clarke’s message, believing the Sheriff was per-
1
An initial finding of fact proposed by Sheriff Clarke and
Captain Richards stated ambiguously that “[a] story or two
appeared in the Journal and also reference was made on
Channel 12.” (Def.’s Prop. Findings of Fact ¶ 115.) The defen-
dants later withdrew this proposed finding as inaccurate,
citing a search of a legal database for Journal Sentinel articles
during the relevant time. Plaintiffs then disputed that there
were no stories in the Journal Sentinel, but they did not propose
an additional finding of fact, nor did they point the district
court to any such article.
4 No. 08-3298
sonally challenging his own—and his brother and sister
officers’—courage to perform their duties.
In response to the Sheriff’s quote, Schuh submitted a
two-sentence statement to the Star, an MDSA newsletter
dedicated to publishing news and updates within the
Sheriff’s Office. The Star regularly contained editorials
and commentary from deputies, including occasional
criticism of Sheriff Clarke. The MDSA distributes the
Star to approximately 700 current and retired MDSA
members, as well as private businesses, sponsors, and
the Milwaukee County Board of Supervisors, which
controls the Sheriff’s budget.
Deputy Schuh’s article mirrored Sheriff Clarke’s quote
from Deuteronomy, with a few additions that Moses
never uttered while outside of the Promised Land:
Union Member’s Response:
If you are afraid or you have lost your courage and
need two deputies and a sergeant to escort you
every time you fly in and out of the airport and
patrol deputies to drive by your house when
you’re out of town you should resign and go
home! Then you would lift the morale of this
whole department (a.k.a. office).
According to Deputy Schuh, he learned of Sheriff
Clarke’s use of officers to patrol his home by viewing an
order for that assignment on a roll-call board, and news
of the Sheriff’s personal escorts to the airport arrived
through the “grapevine.” Schuh testified that he con-
strued the Sheriff’s post as a challenge to his courage, and
No. 08-3298 5
he wrote his response to “throw back at him what he
threw at us.” Schuh merely intended to make a sarcastic
remark about the Sheriff’s courage and did not believe
that Clarke was in fact a coward.
On Friday, July 22, 2005, the MDSA distributed the
edition of the Star containing Schuh’s article. Sheriff
Clarke, who did not know Deputy Schuh until this inci-
dent, was less than pleased by the statement. Later that
evening, Clarke called his second-in-command, Inspector
Kevin Carr, to discuss an appropriate response.
Clarke settled on reassigning Schuh to a new “Pilot
Project,” created just for Schuh, that required him to
patrol a portion of Milwaukee on foot, in full uniform, and
perform various tasks. One objective of the Project was to
improve relations with the community, which Schuh
would achieve by interviewing residents to determine
“what plagues the neighborhood the most” and to
“[c]onvince them that we’re the good guys/we’re on their
side and can’t succeed without their participation.”
Another of the stated objectives of the Project was
simple: “Visibility.” Clarke e-mailed the details of the
new assignment to Carr on Saturday, July 23, stating that
“We’ll identify the census tract. . . . And order him to
wear his uniform hat for greater visibility.”
Any uncertainty that Sheriff Clarke harbored about
where to send Deputy Schuh was resolved the next day,
Sunday, July 24, when the Journal Sentinel printed a map
of a crime-ridden section of Milwaukee’s north side. The
newspaper characterized the map as the “demographics
of a high killing area,” described the one-square-mile
6 No. 08-3298
neighborhood as “the City’s deadliest area,” and demar-
cated recent “homicides in Milwaukee’s ‘hot spot.’ ” Sheriff
Clarke acknowledged reading the article; the reader
can undoubtedly see where this tale is headed.
When Deputy Schuh arrived at work on Monday, July 25,
he received his plum new assignment. The location to
which Clarke assigned Schuh matched precisely the
boundaries of “the City’s deadliest area.” Schuh was told
that he must embark on this foot patrol campaign in full
uniform, without a partner, and without a squad car.
And unlike any other officer, he was required to ride a
Milwaukee County Transit bus to and from his new “beat.”
He received no advance notice of his reassignment, as
required by the parties’ collective bargaining agreement.
Not surprisingly, Schuh viewed the reassignment as
punishment for his statement against Sheriff Clarke.
County authorities and the local media quickly learned
of the Sheriff’s conduct. On July 27, two days after
Schuh’s reassignment, the Milwaukee County Board of
Supervisors, which oversees the Sheriff’s budget, issued
an open letter to the Sheriff. The Board expressed its
“disgust at the reassignment of Deputy Michael Schuh,”
criticized the Sheriff’s fiscal irresponsibility and “senseless
approach” to combating violence, and concluded:
“We urge you to reconsider the blatantly shortsighted,
irresponsible, and potentially dangerous move of placing
a Deputy as a one-man foot patrol in the streets.” Deputy
Schuh and the MDSA filed a federal lawsuit on the
same day, and the media’s focus then shifted to the
litigation.
No. 08-3298 7
On July 29, the Journal Sentinel published an editorial
cartoon depicting Sheriff Clarke (donning the obligatory
ten-gallon cowboy hat) pointing a gun labeled “retaliation”
at a picture of Deputy Schuh, only to have it backfire in
the Sheriff’s face, to which the Sheriff exclaims, “I guess
I showed him!”
Schuh served on foot patrol for over one month, from
July 25 to September 8, 2005. He was equipped with a
radio and stated that he was neither afraid nor
threatened while performing his duties. Schuh did not
lose any pay or benefits during the Pilot Project, and he
was eventually granted his request for a transfer.
On July 28, 2005, only three days after reassigning
Deputy Schuh, Sheriff Clarke issued Directive No. 13-05,
which formally revised the department’s Confidentiality
Policy. The original Confidentiality Policy was promul-
gated in 1984, and a revision had apparently been in the
works for some time prior to the controversy sur-
rounding Deputy Schuh. Sheriff’s Office employees
proposed an updated policy in 2002, although the revision
was never implemented. In July 2005, Captain Eileen
Richards, at Sheriff Clarke’s direction, drafted the
revised policy, relying in large part on the unimplemented
2002 proposal.
The new policy, which remains in effect, differed only
slightly from the old. Rather than requiring employees to
“keep departmental business confidential,” employees
now must “keep official agency business confidential.”
Employees are prohibited from imparting such informa-
tion “to anyone except those for whom it is intended, or
8 No. 08-3298
as directed by the Sheriff or his designee, or as ordered
by law.” The new rule also mandates that no one “shall
speak on behalf of the” Sheriff’s Office unless authorized
to do so.
After Sheriff Clarke issued the revised Confidentiality
Policy, Deputy Schuh spoke with the media on multiple
occasions regarding his reassignment. He was never
disciplined or threatened with discipline under the new
Policy. In fact, MDSA president Roy Felber was unaware
of any employee disciplined under either version of the
Policy.
The parties agreed to dismiss, without prejudice, the
federal lawsuit that Deputy Schuh and the MDSA filed on
July 27, 2005, and on October 7, the plaintiffs filed the
present suit in Milwaukee County Circuit Court. Schuh
and the MDSA alleged violations of Wisconsin state
law and, pursuant to 42 U.S.C. § 1983, that (1) the defen-
dants retaliated against Schuh in violation of his
First Amendment rights to free speech and association;
and (2) the Department’s new Confidentiality Policy
constituted an impermissible prior restraint. The defen-
dants removed the action to the United States District
Court for the Eastern District of Wisconsin on August 17,
2006.
The parties filed cross-motions for summary judg-
ment, and the district court ruled in favor of Sheriff Clarke
and Captain Richards on all federal claims. The court
declined to exercise supplemental jurisdiction over the
state claims and dismissed the action. Deputy Schuh and
the MDSA now appeal, and for the reasons that follow, we
No. 08-3298 9
agree that summary judgment in defendants’ favor was
proper.
II. A NALYSIS
Our guiding principles for reviewing a grant of sum-
mary judgment are familiar. We review the district
court’s decision de novo and must reverse if we find that
a reasonable jury could have rendered a verdict in favor
of the MDSA and Deputy Schuh. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). The parties filed cross-
motions for summary judgment, and we construe the
evidence in favor of the MDSA and Schuh, the parties
against whom the motion under consideration was
made. See Samuelson v. LaPorte Cmty. Sch. Corp., 526
F.3d 1046, 1051 (7th Cir. 2008).
The MDSA and Deputy Schuh raise two issues on
appeal: (1) whether Sheriff Clarke violated Schuh’s First
Amendment rights by reassigning him to the new Pilot
Program; and (2) whether the revised Confidentiality
Policy constituted an impermissible prior restraint.
A. First Amendment Retaliation
The First Amendment, applicable to the states through
the Fourteenth Amendment, prohibits a public employer
from retaliating against an employee for engaging in
protected speech. See Callahan v. Fermon, 526 F.3d 1040,
1043-44 (7th Cir. 2008). We apply a three-step analysis to
a First Amendment retaliation claim under 42 U.S.C.
10 No. 08-3298
§ 1983: (1) the employee’s speech must be constitutionally
protected; (2) the employer’s action must be motivated
by the constitutionally protected speech; and (3) if the
action was retaliatory, we consider whether the em-
ployer has demonstrated that it would have taken the
same action irrespective of the employee’s speech.
Houskins v. Sheahan, 549 F.3d 480, 489-90 (7th Cir. 2008);
Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999).
This case turns on whether Deputy Schuh’s speech was
constitutionally protected, for there is no question that
Sheriff Clarke retaliated against Schuh for publishing
his statement in the Star. Nor can Clarke claim that he
would have taken the same action irrespective of Schuh’s
speech; he did not even know Schuh before the article
appeared. The record is crystal clear that Clarke
responded to Schuh’s remarks by reassigning him to a
dangerous neighborhood on a newly created mission
of questionable public utility. Sheriff Clarke hand-tailored
the task for Schuh alone, wanted him to be overtly visible,
and ordered him to take the bus to his new “beat.” In our
view, Sheriff Clarke’s response was a childish and poten-
tially harmful reprisal for a two-sentence statement, and
we do not condone his conduct. Apparently our
thoughts are consistent with those of the Milwaukee
County Board of Supervisors, the media, and the general
public. But Sheriff Clarke’s conduct, as irresponsible as
it may have been, violated Deputy Schuh’s First Amend-
ment rights only if the speech was constitutionally pro-
tected, and it is upon that question that we must focus.
The government may not “condition public employ-
ment on a basis that infringes the employee’s constitution-
No. 08-3298 11
ally protected interest in freedom of expression,” Connick
v. Myers, 461 U.S. 138, 142 (1983), but a public employee’s
right to free speech is not absolute, City of San Diego
v. Roe, 543 U.S. 77, 80 (2004) (“[A] governmental em-
ployer may impose certain restraints on the speech of its
employees, restraints that would be unconstitutional if
applied to the general public.”); Fuerst v. Clarke, 454
F.3d 770, 774 (7th Cir. 2006).2 Our goal 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 promoting
the efficiency of the public services it performs through
its employees.” Pickering v. Bd. of Educ. of Twp. High Sch.
Dist. 205, 391 U.S. 563, 568 (1968).
To receive First Amendment protection, therefore, a
public employee must speak “as a citizen on a matter of
public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417
(2006). If he is not so speaking, the employee has no
cause of action for First Amendment retaliation, and we
need not balance the employee’s interests against the
government’s interest in promoting effective and efficient
public services. Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir.
2007). Sheriff Clarke disputed below that Schuh was
speaking “as a citizen” by writing his article for the Star,
but he has conceded this point on appeal.3
2
Sheriff Clarke was also the defendant in Fuerst.
3
And a wise concession it was. The only connections between
Schuh’s speech and his employment were that Sheriff Clarke
(continued...)
12 No. 08-3298
Because Deputy Schuh was speaking as a citizen, we
turn to the central question: whether his statement was “on
a matter of public concern.” To determine this question
of law, we must consider “the content, form, and context of
a given statement, as revealed by the whole record.”
Connick, 461 U.S. at 147-48. Although no factor is
singularly dispositive, we have indicated that the content
of the speech is the most important of the three. See
Chaklos v. Stevens, 560 F.3d 705, 714 (7th Cir. 2009); Cliff v.
Bd. of Sch. Comm’rs, 42 F.3d 403, 409 (7th Cir. 1994).
When examining the “context” of a public employee’s
speech, the employee’s motive for speaking is a relevant
consideration. Cliff, 42 F.3d at 410; see also Chaklos, 560
F.3d at 714; Miller v. Jones, 444 F.3d 929, 937 (7th Cir.
2006). After all, “[t]he First Amendment ‘was fashioned
to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by
the people.’ ” Connick, 461 U.S. at 145 (quoting Roth v.
United States, 354 U.S. 476, 484 (1957)). A public employee,
familiar with an agency’s use of public resources, may
be in the best position to raise issues vital to efficient,
successful, and legal governance. As the Supreme Court
3
(...continued)
was his superior and that he learned of Clarke’s conduct
through his position as a deputy. Schuh drafted his statement
while off-duty, he reported the conduct externally, and no
evidence indicates that the speech was “pursuant to” or “owe[d]
its existence to” his official duties. Garcetti, 547 U.S. at 421.
Consequently, the district court correctly found that Schuh
was speaking as a citizen.
No. 08-3298 13
has noted, “public employees are often the members of
the community who are likely to have informed opinions
as to the operations of their public employers . . . . Were
they not able to speak on these matters, the community
would be deprived of informed opinions on important
public issues.” Roe, 543 U.S. at 82. At its core, then, the
First Amendment should protect speech that intends to
raise such issues.
But a public employee’s motive for speaking is not
necessarily a dispositive factor, and we have cautioned
against creating “an absolute litmus test because [motive]
does not supplant content in terms of overall importance
to the public concern inquiry.” Cliff, 42 F.3d at 410; see
also Chaklos, 560 F.3d at 714; Miller, 444 F.3d at 937. Conse-
quently, that a public employee speaks out in part for
personal reasons will not necessarily remove the speech
from the scope of public concern. See Phelan v. Cook County,
463 F.3d 773, 791 (7th Cir. 2006); Gustafson v. Jones,
290 F.3d 895, 908 (7th Cir. 2002); Zorzi v. County of Putnam,
30 F.3d 885, 897 (7th Cir. 1994) (“ ‘[T]he mere fact that an
employer’s statement is an outgrowth of his personal
dispute does not prevent some aspect of it from touching
upon matters of public concern . . . .’ ” (quoting Berg
v. Hunter, 854 F.2d 238, 242 (7th Cir. 1988))).
The motive of a statement, rather, “matters to the
extent that even speech on a subject that would other-
wise be of interest to the public will not be protected if
the expression addresses only the personal effect upon
the employee, or if the only point of the speech was to
further some purely private interest.” Gustafson, 290
14 No. 08-3298
F.3d at 908 (citation and quotations omitted); see also
Button v. Kibby-Brown, 146 F.3d 526, 529-30 (7th Cir. 1998)
(“[S]peech lacks the public concern element if it
concerns a subject of public interest but the expression
addresses only the personal effect upon the employee.”
(quotations omitted)). We must analyze the extent that
an employee’s speech was made for personal reasons in
conjunction with the extent to which the content relates
to a matter of public concern. See Metzger v. DaRosa, 367
F.3d 699, 702 (7th Cir. 2004) (“ ‘[W]here considerations of
motive and context indicate that an employee’s speech
raised a topic of general societal interest merely for per-
sonal reasons rather than a desire to air the merits of
the issue, . . . these factors militate against the conclusion
that the employee’s speech is entitled to First Amend-
ment protection.’ ” (quoting Campbell v. Towse, 99 F.3d
820, 827 (7th Cir. 1996))).
With these considerations in mind, we turn to Deputy
Schuh’s statement, which the district court determined
to be a purely personal response to Sheriff Clarke’s Deuter-
onomy quote. First, the form of Schuh’s statement weighs
in favor of constitutional protection; the Star is a labor
organization newsletter that is distributed beyond De-
partment employees and dedicated to, inter alia, political
commentary. The effect of the content and context of
Schuh’s statement, however, is not as clear.
Regarding the content of Schuh’s statement, the district
court simply stated “Deputy Schuh’s article questioned
Sheriff Clarke’s personal use of department resources.”
We interpret this to mean that the court found the
No. 08-3298 15
content to be related to a matter of public interest. Indeed,
speech protesting government waste is of legitimate
interest to the general public. See Chaklos, 560 F.3d at 713.
But we are less certain that Schuh’s article actually spoke
to or protested government waste. Again, Deputy Schuh
issued the following statement:
If you are afraid or you have lost your courage and
need two deputies and a sergeant to escort you
every time you fly in and out of the airport and
patrol deputies to drive by your house when
you’re out of town you should resign and go
home! Then you would lift the morale of this
whole department (a.k.a. office).
A simple reading of Deputy Schuh’s comment indicates
that he believed that the Sheriff’s need for additional
security meant that the Sheriff had “lost [his] courage.”
Schuh did not comment directly on the department’s
waste of taxpayer dollars or the impact of the Sheriff’s
conduct on the availability of officers for more legitimate
purposes; our reading of the statement suggests that he
focused instead on the Sheriff’s lack of courage.4 Although
4
Perhaps a county sheriff’s lack of courage, in and of itself,
may qualify as a matter of public concern, although the MDSA
and Schuh have not raised this argument. We do not doubt
that the public would feel safer with courageous lawmen,
conjuring up visions of Wyatt Earp patrolling Tombstone
and prevailing in the shootout at the O.K. Corral, and Elliot
Ness leading his band of “Untouchables” in the quest to bring
down Al Capone. But given the ambiguity of Schuh’s statement
(continued...)
16 No. 08-3298
we ultimately agree that the content of Schuh’s state-
ment “related to” a matter of public interest, we do not
examine the speech’s content in a vacuum, nor do we
rely solely on the express language. We comment on the
content of Schuh’s statement merely to note that any
reference to government waste was indirect and
tangential, making the context a more important con-
sideration when determining whether the speech was on
a matter of public concern.
After examining the content and context of Schuh’s
statement, we find that Schuh was speaking on a matter
of purely private concern. The context of the speech,
which includes the circumstances surrounding its pub-
lication and Schuh’s motive, indicates that Deputy Schuh
responded to what he considered to be a personal chal-
lenge to his courage by issuing his own personal chal-
lenge to Sheriff Clarke’s courage. Sheriff Clarke posted
his initial challenge where it would be widely viewed by
his subordinates; Deputy Schuh published his retort in
a similar forum—an MDSA newsletter distributed to
current and retired officers. Although the plaintiffs
attempt to link Schuh’s article to the controversy that
prompted the MDSA to approach the media, nothing
suggests that Deputy Schuh intended to bring to light the
Sheriff’s abuse of county resources, to provoke public
discussion about Clarke’s conduct, or to air the merits of
4
(...continued)
and considering the remaining analysis, we need not address
this question.
No. 08-3298 17
any related dispute. And most importantly, the language
he used in the two-sentence statement does nothing to
further such a purpose. Instead, although Schuh’s speech
may have been of general public interest, it focused solely
on “the personal effect upon” Schuh, and “the only
point of the speech was to further some purely private
interest.” Gustafson, 290 F.3d at 908 (quotations omitted);
see also Metzger, 367 F.3d at 702; Kokkinis, 185 F.3d at 844.
Deputy Schuh’s own testimony reinforces this conclu-
sion. The undisputed facts, based on Schuh’s deposition,
state the following: Schuh believed that Sheriff Clarke’s
“inspirational message” was challenging his courage to
perform his job; Schuh wrote his article to question
Clarke’s courage in return; Schuh was responding to the
quote on the roll-call board and intended to make a
sarcastic comment about Clarke; and Schuh wrote the
article to “throw back at him what he threw at us.” 5 We
can find no evidence in the record that supports plain-
tiffs’ contention that Deputy Schuh had anything but a
5
The plaintiffs assert that the district court overemphasized this
component of Schuh’s testimony, but Deputy Schuh repeated
this phrase three separate times during his deposition. When
asked directly why he wrote the article, Schuh answered, after
an objection by his counsel that the question was asked and
answered, “I wrote the article to throw back at him what he
threw at us. That’s my, was—the whole purpose of the article.”
Further, the plaintiffs did not dispute the defendant’s pro-
posed findings of fact on this issue, nor did they propose
any additional finding of fact regarding Deputy Schuh’s
motive for writing the article.
18 No. 08-3298
personal motive for making his statement.6 Cf. Chaklos, 560
F.3d at 713-14 (holding that speech addressing a private
interest within a letter containing matters of public
interest was protected and noting that “we have em-
phasized that speech of public importance is only trans-
formed into a matter of private concern when it is moti-
vated solely by the speaker’s personal interests” (quotations
omitted)).
Our case law supports our determination. The parties
and the district court each discussed our decision in
Kokkinis, and we find that Deputy Schuh’s speech
here represents an even clearer example of the principles
we explained in that case. In Kokkinis, the plaintiff, a
police officer, appeared on a television news program
that was reporting on a fellow officer’s allegation of
sex discrimination by the police chief. 185 F.3d at 842.
Kokkinis commented generally on the police chief’s
“vindictiveness” and claimed that he made many offi-
cers’ lives miserable. Id. Kokkinis was reprimanded
and filed suit, and we held that his speech was unpro-
6
The plaintiffs point to two isolated comments that suggest a
broader purpose for Schuh’s comments. Schuh stated that he
disagreed with using deputies to patrol Clarke’s residence
“[b]ecause I don’t think it serves any purpose.” And he later
stated that he “might have” used some information from a
newspaper in writing his article. Plaintiffs did not highlight
these comments before the district court, but even if they had,
they do not suggest that Schuh intended to raise a matter of
public concern, and the undisputed facts state Schuh’s
clear purpose for submitting his article.
No. 08-3298 19
tected by the First Amendment because, although sex
discrimination in the police department is undoubtedly a
matter of public concern, he “had a limited interest in
speaking on [that] subject,” he knew little about the
allegations, and he sought “simply to further his own
goal of expressing his displeasure with the Chief’s poli-
cies.” Id. at 844.
We recently reached the opposite result in Chaklos,
finding speech by government employees to be protected
because it raised matters of both private and public con-
cern. 560 F.3d at 713-14. The plaintiffs in Chaklos were
employed by the Illinois State Police to train forensic
scientists; they also owned an independent forensic
services company. Id. at 709. When the employees dis-
covered that the police awarded a contract for forensic
training without a bidding process, they wrote a letter
protesting the contract and stating that their company
could provide “substantial savings to the State of Illinois.”
Id. We held that even though the employees clearly had a
personal motive for drafting the letter—to procure the
business for themselves—they nevertheless also
intended to highlight that Illinois was wasting money
by employing a non-competitive bid process. Id. at 713-14.
The employees’ purpose in speaking was mixed, the
letter’s content contained matters of public interest, and
the speech deserved protection under the First Amend-
ment. Id. at 714.
These two cases illuminate the boundary we draw to
determine whether speech addresses a matter of public
concern, and we find that Deputy Schuh’s article falls
20 No. 08-3298
on the Kokkinis side of the fence. Unlike the letter in
Chaklos, which contained a matter of public interest
because it stated that Illinois was wasting taxpayer
money, Schuh’s article did not directly question Clarke’s
fiscal responsibility or raise the public ramifications of
Clarke’s conduct. Although a reader may interpret the
statement this way, the ambiguity in the content makes
the context of the speech more important. The record
reveals that Schuh made his statement out of a purely
personal interest, whereas the plaintiffs in Chaklos had
a mixed motive for writing their letter. And like the
plaintiff in Kokkinis, who employed a much more public
platform for his comments, Schuh’s article in the Star
“was not designed to address a matter of public concern,”
185 F.3d at 844, and the content of his speech does
nothing to overcome that fact.
The MDSA and Schuh also cite the public controversy
surrounding Sheriff Clarke to support their argument that
Schuh’s speech merits First Amendment protection,
whereas the defendants note that there is no evidence
of any media story related to Clarke’s misuse of deputies.
We agree with the MDSA and Schuh on one point:
whether the Journal Sentinel published an article is not
dispositive of whether Schuh was speaking on a matter
of public concern. The pivotal question is not the actual
presence of public controversy, but whether the speech
might inform the public debate on an issue of legitimate
interest to the public at the time it is published. Cf. Zorzi,
30 F.3d at 897 n.11 (noting that media coverage is not
dispositive of public concern and stating that “[i]t is
important not to equate the public’s curiosity about a
No. 08-3298 21
matter with the matter having societal ramifications”
(quotations omitted)).
In this case, however, this distinction does not alter our
analysis. Although Sheriff Clarke’s retaliation against
Schuh garnered a great deal of media attention, we
must still evaluate the full content, context, and form
of Schuh’s speech and determine whether it was on a
matter of public concern at the time it was published.
In the end, Schuh cannot avoid that he wrote his
short statement, which on its face merely questioned
Sheriff Clarke’s courage, for purely personal reasons. The
plaintiffs argue that the district court “myopically” ne-
glected the full context of Schuh’s speech, particularly
because it did not connect his article to the MDSA’s
initial meeting with the press. Had it done so, the plain-
tiffs claim, the “point” of the speech would have proven
largely immaterial. We do not see how this is so. First, the
plaintiffs have not produced evidence, apart from
timing, that Sheriff Clarke’s Deuteronomy posting was
in response to the MDSA’s meeting with the press. But
more importantly, adding this to the context does not
alter the outcome. Schuh’s reference to the Sheriff’s
misuse of deputies bolstered his challenge to the Sheriff’s
courage by providing examples of his purported coward-
ice.
We do not intend to establish the speaker’s motive as the
determinative factor in a First Amendment retaliation
claim. But where, as here, the public component of Schuh’s
speech was unstated, indirect, and tangential to his
primary purpose, which was a purely personal challenge
22 No. 08-3298
to the Sheriff, we cannot extend First Amendment pro-
tection. We reach this conclusion after carefully consider-
ing the entire content, context, and form of Schuh’s
article. Because we find that Deputy Schuh did not
speak on a matter of public concern, we need not pro-
ceed to the Pickering balancing test, and summary judg-
ment in the defendant’s favor was appropriate. See
Metzger, 367 F.3d at 703.
B. Prior Restraint
We next consider whether Directive No. 13-05, the
revised Confidentiality Policy issued by the Sheriff’s
Office, is an unconstitutional prior restraint. The MDSA
and Deputy Schuh argue that the revised Policy, issued
the day after they filed suit, was a direct response to
the media coverage of Schuh’s reassignment and
prevents an employee from divulging “official agency
business” to anyone, including when speaking as a
citizen on matters of public concern. The district court
determined that the Policy was not unlawful, and we
review this decision of law de novo.
The predecessor to Directive 13-05 stated that “Members
shall keep departmental business confidential” and
prohibited discussing official information unless directed
by a supervisor or as required by law. The relevant
portion of the new policy reads:
It is the policy of the Milwaukee County Sheriff’s
Office (MCSO) that all Sheriff’s Office employees
shall keep official agency business confidential.
No. 08-3298 23
They shall not impart it to anyone except those
for whom it is intended, or as directed by the
Sheriff or his designee, or as ordered by law. No
member of the agency shall speak on behalf of the
organization unless authorized to do so by the
Sheriff or his designee.
The primary changes to the policy are that “departmental
business” became “official agency business,” and the
Sheriff, rather than an employee’s supervisory officer,
now possesses the authority to direct the dissemination
of such information.
Before reaching the merits of the plaintiffs’ argument,
we first note that they may raise a facial challenge to
Directive 13-05 even though neither Deputy Schuh nor
any other departmental employee has ever been disci-
plined for violating it or its predecessor. See Wernsing v.
Thompson, 423 F.3d 732, 743-44 (7th Cir. 2005) (collecting
cases and noting that “government employees whose
speech is limited by an internal policy or a pre-clearance
directive such as [defendant’s] need not seek permission
to speak or violate the directive in order to challenge the
directive in court”). Thus we address the plaintiffs’ claim.
The term “prior restraint” describes “ ‘administrative
and judicial orders forbidding certain communications
when issued in advance of the time that such communica-
tions are to occur.’ ” Samuelson, 526 F.3d at 1051 (quoting
Alexander v. United States, 509 U.S. 544, 550 (1993)). The
Supreme Court has explained how we are to determine
whether a rule constitutes a prior restraint, see Se. Promo-
24 No. 08-3298
tions, Ltd. v. Conrad, 420 U.S. 546, 554 (1975), but before
any restriction may be unconstitutional, it must apply to
speech protected by the First Amendment, Samuelson,
526 F.3d at 1052 (citing United States v. Nat’l Treasury
Employees Union, 513 U.S. 454, 465-66 (1995)).
As we mentioned above, a public employee does not
have a protected interest in speech unless he is speaking
as a citizen on a matter of public concern. Garcetti, 547 U.S.
at 421; Treasury Employees, 513 U.S. at 466. Whereas our
earlier discussion concerned whether speech was “on a
matter of public concern,” we now examine the “citizen”
component of this requirement. Public employees who
speak pursuant to their official duties “are not speaking
as citizens for First Amendment purposes.” Garcetti,
547 U.S. at 421. The Supreme Court explained that such
speech “owes its existence to a public employee’s profes-
sional responsibilities,” and restricting it “simply reflects
the exercise of employer control over what the employer
itself has commissioned or created.” Id. at 421-22. The
Court did not articulate a framework for determining
whether particular speech arose from one’s professional
duties, but it stated that the inquiry should be “a practical
one” not confined to formal job descriptions. Id. at 424-25.
Therefore, before balancing the parties’ pertinent inter-
ests according to the Supreme Court’s opinion in Treasury
Employees, we must first ask whether Directive 13-05
regulates solely unprotected speech, i.e., that which owes
its existence to an employee’s duties as a Milwaukee
County police officer. See Crue v. Aiken, 370 F.3d 668, 678-79
(7th Cir. 2004) (explaining the Treasury Employees
No. 08-3298 25
balancing test and in what cases it applies). The district
court answered this question affirmatively and deter-
mined that the Policy was not an unlawful prior restraint.
The plaintiffs, however, assert that the Policy
impermissibly prevents Department employees from
relaying any information “related to” official agency
business, which extends beyond speech made “pursuant
to” or that “owed its existence to” an employee’s job
duties.
Without question, and as the plaintiffs acknowledge,
Directive 13-05’s prohibition on employee speech “on
behalf of the organization” regulates unprotected speech
owing its existence to the employee’s professional duties.
See Garcetti, 547 U.S. at 421; Callahan, 526 F.3d at 1044.
The real dispute in this case is the extent to which the
requirement to “keep official agency business confiden-
tial” encompasses speech by an employee as a citizen.
We find that Directive 13-05 is not an unlawful prior
restraint because it does not apply to speech protected
by the First Amendment. The MDSA and Schuh argue
for an expansive interpretation of the phrase “official
agency business.” They suggest that Directive 13-05
precludes any speech “related to” such business, even
though those words do not appear in the Policy itself.
We do not read the Policy so broadly. Rather, we find that
it regulates only speech “grounded in the public em-
ployee’s professional duties.” Samuelson, 526 F.3d at 1052.
The terminology of the Policy, which makes no
reference to speech as a citizen, is central to our deter-
mination. The Policy covers only “official agency busi-
26 No. 08-3298
ness,” a phrase containing three separate components.
First, the regulated information must be “business,” rather
than merely a topic of general interest. Of course, a
police department’s business may be of public interest,
but the term at least removes anything tangentially
“related to” the department from its coverage. Second, the
term “agency” suggests that the business must be gener-
ated by or pertain to the Milwaukee County Sheriff’s
Office. Third, and in our view most importantly, the
regulated information must be “official,” which typically
means either “[o]f or relating to an office or position of
trust or authority,” or “[a]uthorized or approved by a
proper authority.” Black’s Law Dictionary 1119 (8th ed.
2004). By requiring the regulated speech to be “official,”
the Policy properly restricts only speech grounded in or
owing its existence to the employees’ job duties. We
trust that the Milwaukee County Sheriff’s Office will
enforce its policy accordingly, as it has done for approxi-
mately twenty-nine years; if it does not, it potentially
exposes itself to an as-applied challenge to the Policy
or a claim for First Amendment retaliation under the
Connick-Pickering line of cases described above.
To support their claim that Directive 13-05 was
intended to squelch speech protected by the First Amend-
ment, the MDSA and Schuh also emphasize that the
Directive was issued the day after they filed their law-
suit. We do not deny that this timing is somewhat suspi-
cious. But according to the record, the Sheriff’s Office had
been considering revisions for a number of years, and no
employee has been disciplined under the new or the old
No. 08-3298 27
policy. More importantly, the timing does not alter that we
must analyze the Policy as a whole and determine whether
it regulates protected speech. If the revision was a knee-
jerk response to the controversy surrounding Deputy
Schuh, it certainly did not stifle criticism from officers,
employees, and Schuh regarding the Sheriff’s misuse of his
authority. Department employees have levied countless
criticisms against the Sheriff regarding this controversy
and others, both before and after the revision, resulting in
no discipline under either version of the Policy.
Last, we are not convinced that vesting the authority
to permit dissemination of “official agency business” in
the hands of Sheriff Clarke or his designee renders the
new Policy unlawful. This change alters from whom an
employee must seek permission to speak, but it does not
expand the scope of the speech governed by the new Policy.
The Sheriff is still confined by the Policy and may not
restrict constitutionally protected speech made by an
employee speaking as a citizen. We are confident that both
the purpose and language of Directive 13-05 encompass
only speech that “owes its existence to a public employee’s
professional responsibilities.” Garcetti, 547 U.S. at 421.
Because the revised Confidentiality Policy regulates only
speech not subject to First Amendment protection, the
Policy is not an unlawful prior restraint, see Samuelson,
526 F.3d at 1052, and summary judgment in the defen-
dants’ favor was appropriate.
28 No. 08-3298
III. C ONCLUSION
We find that Deputy Schuh’s statement was not on a
matter of public concern, and he cannot sustain his
First Amendment retaliation claims. We also find that
Directive 13-05 is not an unlawful prior restraint. For
these reasons, summary judgment was appropriate for
all of the plaintiffs’ federal claims, and we A FFIRM .
7-21-09