The Seventh Circuit recently issued a decision offering guidance on First Amendment retaliation claims stemming from a public official's response to protected speech. In Hayes v. Board of Education of the City of Chicago, the Court addressed claims brought by a Northwestern University employee who criticized Chicago Public Schools on social media. A CPS official contacted the employee’s supervisors at Northwestern to express concern that the posts were affecting the relationship between CPS and Northwestern. Northwestern later terminated the employee, who then sued the official and the Board of Education.
Ultimately, the Seventh Circuit did not decide whether the official's conduct violated the First Amendment. Instead, the Court assumed for purposes of the appeal that a constitutional violation may have occurred but concluded that no clearly established precedent would have put the official on notice that his conduct was unconstitutional. It held that the official was, therefore, entitled to qualified immunity.
In reaching that conclusion, the court emphasized that the official acknowledged the employee's right to express her views, did not threaten prosecution or other legal consequences, did not direct Northwestern to terminate the employee, and left any employment decision to the university.
For public entities, the decision illustrates the distinction courts may draw between communications that identify legitimate operational concerns and those that may reasonably be viewed as threats, coercion, intimidation, or attempts to use governmental authority to punish protected speech. Public officials should avoid requesting, suggesting, or implying that a third-party employer should discipline the speaker, and should avoid invoking regulatory, funding, contractual, licensing, or other governmental leverage.
The decision may serve as useful precedent for individual officials asserting qualified immunity in similar cases, but it should not be read as authorizing public officials to pressure third-party employers or institutions to discipline speakers. The Court did not hold that the official’s conduct was constitutional, nor did the decision resolve the plaintiff’s remaining claims against the governmental entity. Public officials should continue to exercise caution before contacting a speaker’s employer or business partner when First Amendment retaliation concerns may be implicated.
If you have any questions about First Amendment retaliation claims, please contact Mark J. Kimzey (mkimzey@airdowerwas.com) or Jacob S. Sauter (jsauter@airdowerwas.com).
