Cities Gain Modest Protection from High Court Ruling on Speech; Opinion Sends Mixed Signal

Article excerpt

The U.S. Supreme Court last week gave cities a measure of protection against suits from employees disciplined for things they said. The Court overturned a Seventh Circuit Court of Appeals ruling that would have held public employers to a strict new standard of liability when terminating employees for insubordinate speech.

The victory on this issue is tempered by the mixed signal the ruling, a plurality, sends. One one hand, the decision protects cities against the harsh liability specifically proposed by the Seventh Circuit, but, at the same time, lacking clarity, it opens the door to greater liability for cities.

But the plurality decision by the Supreme Court gave no bright line test for cities to determine what rights and procedures they have in disciplining employees over statements the employees have made. The decision provided no clear rule about when cities and towns would be subject to Section 1983 liability for disciplinary actions taken against employees for speech subsequently found to be protected under the First Amendment.

The case clearly changes the standard of liability for municipalities, as well as states and the federal government. It does not affect private employers, because the First Amendment only limits how governments can restrict speech.

NLC, the National Governors' Association, and other state and local organizations had filed a friend of the court brief, as did with the Clinton administration, due to the far-reaching implications and stringent standards the Seventh Circuit ruling imposed on public employers.

The case, Waters v. Churchill, began in 1987, when the plaintiff, Cheryl Churchill, an obstetrics nurse, was fired by the McDonough District Hospital, a public hospital, in Macomb, Illinois for making critical comments about management. As reported to hospital supervisors, Churchill criticized nursing managers personally, discussed her evaluation, and made other insubordinate comments.

Churchill alleged that the hospital was liable for retaliatory discharge under the First Amendments. She claimed that she was terminated because she had complained about the hospital's cross-training program, which, she further asserted, is a matter of public concern and is protected by the free speech provision of the First Amendment.

The hospital argued that it did not have any knowledge of anything other than unprotected, insubordinate speech by Ms. …