Robert Deutsch was the Police Chief for Laramie, Wyoming. In the summer of 2007, Deutsch used City petty cash to purchase a laptop computer for $1,433.11. The purchase violated City policy, but was apparently unknown to the public until a city council meeting in May 2008. At the meeting, Tim Hale, a private citizen, stated that there might have been a misappropriation of City petty cash by a department director and inquired how such a matter would be handled. He provided no specifics.
Hale allegedly later sent a letter to City Manager Janine Jordan regarding Deutsch that referred to the $1,433.11 spent for the laptop. Deutsch then filed a defamation lawsuit against Hale in small-claims court. The judge dismissed the lawsuit after Deutsch’s testimony, holding that he was a public figure and that he had failed to demonstrate by clear and convincing evidence that Hale’s statements were made with actual malice.
After the judge’s ruling, Deutsch announced to the media that he would be leaving his job. Jordan heard the announcement on the radio and met with Deutsch on June 26. He told her that he planned to leave City employment in about six months. Jordan later told Deutsch that she was concerned that he had not testified truthfully at the defamation trial, and fired him.
Deutsch then sued Jordan and the City, claiming that he was terminated for his testimony in court, which he contended was protected by the First Amendment. Jordan responded by arguing that Deutsch’s testimony was not constitutionally protected because it was not a matter of public interest, and in any case that the testimony was false.
The federal Tenth Circuit Court of Appeals found Deutsch’s testimony within the ambit of First Amendment protection. As the Court viewed it, “speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city officials clearly concerns matters of public import. The public interest, however, does not end with the accusation of misconduct. Although the issue may arise rarely (because public employees are rarely punished for defending the integrity of their agencies), the response to an accusation is also a matter of public concern. One would hope that public attitudes toward a government agency are not set before both sides are heard. Thus, not only is speech alleging that the Police Chief misused City funds ordinarily speech on a matter of public concern, but so, too, is speech defending against such allegations.
“The context of Deutsch’s speech does not transform it from being speech on a matter of public concern. To be sure, when determining whether speech pertains to a matter of public concern, the Court may consider the motive of the speaker and whether the speech is calculated to disclose misconduct or merely deals with personal disputes and grievances unrelated to the public’s interest. But the speaker’s having a highly personal motive for a disclosure does not necessarily mean that the speech is not a matter of public concern. Whistle blowers may often bear personal grudges. Some subject matter is so imbued with the public interest that speech regarding it will almost always be a matter of public concern, whatever the context.”
As to Jordan’s contention that Deutsch’s testimony was false, the Court found there to be a factual dispute that warranted a trial, and remanded the case to the trial court.
Deutsch v. Jordan, 2010 WL 3310028 (10th Cir. 2010).
This article appears in the December 2010 issue