The huge change in First Amendment free speech law brought about by Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), continues to be apparent. In a recent case, a federal court in Missouri held that statements made in the internal affairs process are not protected by the free speech guarantees of the First Amendment.
The lawsuit involved Mary Pottorf, a dispatcher with the City of Liberty, Missouri Police Department. During an internal affairs investigation, Pottorf told the investigator that several years before, she had witnessed a lieutenant kick a prisoner in the head several times. Pottorf also said that on a different occasion she witnessed the lieutenant strike another officer in the chest.
The Department subsequently fired Pottorf, believing that her allegations against the lieutenant were false. Pottorf brought a federal court lawsuit, contending that her firing violated her First Amendment rights.
In dismissing Pottorf’s lawsuit, the Court assumed that her statements about the lieutenant were true. The Court nonetheless concluded that her statements were unprotected by the First Amendment.
Citing Garcetti, the Court held that “restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”
In the Court’s view, Pottorf had a duty as an employee to answer the questions asked by the internal affairs investigator. The Court held that “the Department depends on conducting its internal affairs investigations to insure its efficiency and effectiveness, and Pottorf’s participation when required was part of the task she was paid to perform as a government employee. The restrictions on Pottorf’s speech as a government employee simply reflect the exercise of employer control over what the employer itself has commissioned or created. Thus, this Court concludes Pottorf’s speech was pursuant to her official and professional duties, and that her speech is not protected by the First Amendment.”
Pottorf v. City of Liberty, Missouri, 2007 WL 2811098 (W.D.Mo. 2007).
This article appears in the November 2007 issue