That’s the title of a scholarly article I wrote as a third-year law student that the Oregon Law Review published in April 2019, and which was cited approvingly in an opinion in Goza v. Mem. Light, Gas & Water Div., No. 2:17-cv-02873-JPM-dkv (W.D. Tenn.), a recent retaliation case in federal court, in June 2019.  Here’s the abstract:

As racial tensions rise in the United States, government employers, like their private-sector counterparts, have several legitimate interests in distancing themselves from an employee’s opinion, especially when an employee’s opinion is discriminatory.  Municipalities, in particular, have a compelling interest in regulating police officers’ speech.  Repugnant police officer views, if published, could ostensibly interfere with a police department’s ability to effectively or efficiently deliver public safety services to the city.  The law must balance the city’s compelling interests in public safety, however, with a police officer’s right to free speech.  The rapidly evolving pace of technological advances that enable instantaneous social media communication, and create records of online speech, exacerbate the need for an accurate balance.

What happens when nobody may have known about a police officer’s controversial speech if the government had not published it, or republished it, on a scale and with tools sufficient to foment public outrage in a very short period of time?  Current federal law provides no clear answer.  Specifically, § 1983 jurisprudence, as currently conceived, does not account for potential First Amendment violations that result when a municipality publicizes or amplifies a police officer’s offensive speech that the public may never have known about but for the municipality publishing or amplifying it, and then fires the officer as a result of public outrage.  Although § 1983 jurisprudence allows municipal employers to override First Amendment protections and fire subordinate employees for offensive speech in certain situations, the current framework does not address whether the Constitution permits this overriding when the employer, rather than the employee, publicizes the speech.  This uncertainty risks chilling debate on salient topics and exposing public employees to the threat of wrongful infringements on their constitutional rights to free speech.  The lack of predictability will continue to pose challenges as information markets continue to change and become more dynamic through technological progress.

Against this backdrop, this Article proceeds by first recounting in Part I the tale of former Metropolitan Nashville and Davidson County Police Officer Anthony Venable, whom the city fired in 2017 for comments he posted on Facebook, when he was off duty, about a fatal police shooting.  Part II discusses § 1983 and sets forth free speech case law that governs public employment retaliation claims pursuant to the statute.  Part III returns to the Venable Case and applies current law to demonstrate the failure of the prevailing retaliation framework to address government-manufactured public opinion crises.  Next, Part IV sketches a new rule that courts should use in analogous cases. Simply put, taking into account the changing nature of the global information ecosystem and evolving speech paradigms in the digital age, and the primacy of protecting speech in American constitutional law, the Venable Rule first requires proof that controversial speech actually disrupted the efficient delivery of public services.  Second, the Venable Rule requires that a terminated public employee has an opportunity to rebut a government employer’s evidence of an actual disruption with his or her own proof that the government’s republication of the speech, as opposed to the initial utterance, caused the disruption.  This Part also provides practical and theoretical justifications for the Venable Rule, further demonstrating how it balances the weighty interests of the speaker, the public employer, and society at large, and better comports with due process of law than the status quo.  Part IV additionally explores how the Venable Rule might apply outside the § 1983 context.

You can download the full paper at my SSRN page.  This issue and Officer Venable’s case were particularly interesting to me as a former communications strategist versed in rapid response, crisis communications, and reputation management tactics, but also because I am exceedingly wary of a seemingly growing popular impulse to silence people based on the content of what they say.

Thanks to the Sixth Circuit Librarians and Glenn Reynolds for helping to publicize my work.