Government employees who secretly leak information to the press are protected by the First Amendment, according to a new decision from the Sixth Circuit Court of Appeals.
In DeCrane v. Eckart, Cleveland firefighter Sean DeCrane was pushed out of his job and subjected to other retaliation after his boss misidentified him as the source for a newspaper story revealing that the city’s new fire chief lacked the training to be a firefighter. DeCrane brought claims for First Amendment retaliation against assistant safety director Ed Eckart.
Eckart raised the defense of qualified immunity, arguing that leaking information to the press isn’t protected by the First Amendment, and that even if it was, there was no way for him to know that. Judge Christopher Boyko rejected those arguments, and the Sixth Circuit today affirmed that ruling.
The court’s decision applies a three-step test that asks: (1) whether the speech in question is about a matter of public or private concern; (2) whether the plaintiff was speaking as a public employee or a private citizen; and (3) whether the employee’s interest in speaking outweighs the government’s interest in operational efficiency. Because Eckart didn’t dispute that DeCrane satisfied the first and third prongs, the court only considered the second, where Eckart claimed that DeCrane’s alleged media leaks government speech because DeCrane was in charge of training firefighters, and the leak was about training.
But the court had little patience for that argument. Besides a long line of authority recognizing that there is a difference between talking for your job and talking about your job, it reminded Eckart that he had already admitted—in sworn testimony—that city policy explicitly prohibited DeCrane from talking to the media about anything. Speech cannot be endorsed by the government speech if it is simultaneously prohibited by the government, so the Sixth Circuit concluded that the leak must have been private speech, and therefore protected in this case.
That left only the question of whether Eckart should be permitted to skirt liability because it would be impossible for him to have known that retaliating against an employee for his speech would violate the First Amendment. The Sixth Circuit rejected this argument, as well, rattling off a list of other cases in which it found that government employees retained First Amendment protection when they spoke on their own, outside their normal job duties, to people outside their chain of command. Eckart himself may not have understood these First Amendment principles, but the Sixth Circuit found that its previously rulings should have “immediately alerted a reasonable person” that the leak was protected by the First Amendment.
The case now returns to Judge Boyko for a trial on the merits.
The Sixth Circuit’s methodical approach to the case conceals the truly complex nature of First Amendment cases involving government whistleblowers, who can face harsh and unpredictable standards when they attempt to vindicate their rights after being punished for reporting official misconduct. DeCrane’s case might have turned out very differently, for instance, if Eckart had attempted to persuade the court that DeCrane was trying to promote his own career rather than public safety, or that DeCrane’s right to leak information was outweighed by the city’s interest in managing its communications with the press.
Besides the First Amendment, there is a dizzying array of laws to protect you from retaliation when you speak up about problems. But beware of moving forward, because many laws are not as strong as they look, and one misstep can leave you unprotected. If you are considering blowing the whistle at work—whether in the public sector or private—be sure to contact Speech Law LLC or other counsel with experience in whistleblower protection before you move forward.