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9.10 Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen

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This chapter is being reviewed in light of comments solicited by the Committee from the public.

9.10 PARTICULAR RIGHTSFIRST AMENDMENT—PUBLIC EMPLOYEES—SPEAKING AS A PRIVATE CITIZEN

A plaintiff speaks as a public employee when he or she makes statements pursuant to his or her official duties. In contrast, a plaintiff speaks as a private citizen if the plaintiff had no official duty to make the statements at issue, or if the speech was not the product of performing the tasks the plaintiff was paid to perform.

In deciding whether a public employee was speaking as a citizen and not as part of his or her official duties, and thus whether his or her speech was constitutionally protected under the First Amendment, you may consider the following factors:

1. Did the plaintiff confine [his][her] communications to [his][her] chain of command? If so, then such speech may fall within the plaintiff’s official duties. If not, then such speech may fall outside of the plaintiff’s official duties.

2. Was the subject matter of the communication within the plaintiff’s job duties? If so, then such speech may fall within the plaintiff’s official duties. If not, then such speech may fall outside of the plaintiff’s official duties.

3. Did the plaintiff speak in direct contravention to [his][her] supervisor’s orders? If so, then such speech may fall outside of the plaintiff’s official duties. If not, then such speech may fall within the plaintiff’s official duties.

4. Was the subject matter of the communication about broad concerns over corruption or systemic abuse beyond the specific department, agency, or office where the plaintiff worked? If so, then such speech may fall outside of the plaintiff’s official duties. If not, then such speech may fall within the plaintiff’s official duties. 

Comment 

 

See Dahlia v. Rodriguez, 735 F.3d 1060, 1074-76 (9th Cir.2013) (en banc).