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Public Defender Had No 1st Amendment Right to Criticize Supervisors Says 3rd Circuit

Joseph De Ritis was an Assistant Public Defender for Delaware County, Pennsylvania. To explain a perceived demotion to judges, other attorneys, and county officials, De Ritis circulated a rumor he had heard that he was being punished for taking too many cases to trial. After the Public Defender fired De Ritis for those statements, De Ritis filed suit, claiming a violation of his First Amendment rights.

The 3rd Circuit ruled against concluding that the First Amendment does not protect the speech at issue here—statements made while performing official job responsibilities, speculative comments about the reason for a perceived demotion, and recklessly false rumors circulated to government officials.

Spreading of Rumors

De Ritis’s rumors proceeded in three phases. First, in the wake of his transfer to the preliminary hearing unit, he informed judges, private attorneys, and his colleagues at the Office of the Public Defender that he was “being punished” for “taking too many cases to trial.”

Second, De Ritis continued sharing the rumor about being punished with attorneys and judges, even to the point of telling one judge, Judge Stephanie Klein, that he had been transferred because he “had refused to obey a ‘policy,’ established by the Chief Public Defender, that the Public Defenders’ office should try to plead guilty as many criminal defendants as possible in order to more easily dispose of the cases assigned to us and pending before the court.” De Ritis had not discussed the issue with his boss before spreading this rumor.

Third, De Ritis turned his efforts toward seeking an audience with the County Council. De Ritis initially pursued that goal by approaching the County Solicitor, Michael Maddren, and telling him the same rumor—namely, that his boss had transferred De Ritis off of a trial team because De Ritis was not “moving” cases and “wanted to take too many cases to trial,” which was at odds with President Judge Kenney’s preferences. De Ritis “suggested that this was violating the rights of his clients,” particularly in view of “the constitutional implications of public defenders being demoted because they advise defendants to seek trials.” Although Maddren agreed to investigate, Maddren ultimately declined to pursue the matter further after contacting the Chief and learning that De Ritis “was not performing well” as an Assistant Public Defender.

Because of De Ritis’s statements to so many people, his boss fired De Ritis.

Speaking out on matters of “Public Concern”

“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

There is an exception to this general rule, however, regarding speech on matters of “public concern.” To involve a matter of public concern, speech must relate to “a subject of general interest and of value and concern to the public,” whether it is a “matter of political, social or other concern to the community” or “a subject of legitimate news interest.” Lane, 134 S. Ct. at 2380. By contrast, speech does not involve a matter of public concern when it relates solely to “mundane employment grievances.” Munroe, 805 F.3d at 467.

In its opinion, the Court held that De Ritis’ speech did involve some matters of public concern but not all of his statements:

“…[W]e hold that De Ritis’s out-of-court statements to other attorneys did not involve a matter of public concern, while his statements to Maddren and McGarrigle did.” “In both of those discussions, De Ritis went further and expressed concern for individuals other than himself: he suggested that the reason he believed he was transferred, i.e., his penchant for taking too many cases to trial, violated “the rights of his clients” to the point of having “constitutional implications.”

Court’s Refusal to Protect Recklessly False Statements

However, the Court refused to protect this type of speech because De Ritis’ comments were “recklessly false:”

“Under the Pickering balancing test, De Ritis’s interest in disseminating “fourth-person hearsay,” gleaned from after-work “gossip,” pales in comparison to the “potential disrupt[ion]” it could have caused to the Public Defender’s Office, Whatever First Amendment value De Ritis’s statements had, those statements gave [the Chief] adequate justification to treat him differently from a member of the public. For that reason, we conclude at this third stage of the analysis that De Ritis’s speech was not protected, putting a hard stop to his First Amendment claim against [the Chief]and entitling [the Chief] to qualified immunity for his decision to fire De Ritis.”

The full opinion is available from Findlaw.

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