First Amendment Retaliation

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding First Amendment retaliation claims. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals.

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Section 1983 allows plaintiffs to sue municipal entities (and municipal officials in their personal capacities) for deprivations of constitutional rights. 42 U.S.C. § 1983; see Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011). One right enforceable through section 1983 is the First Amendment's guarantee of freedom of speech, which "prohibits [the government] from punishing its employees in retaliation for the content of their protected speech." Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001); see also Garcetti v. Ceballos, 547 U.S. 410, 413, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ("It is well settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." (internal quotation marks omitted)). To state a First Amendment retaliation claim, a plaintiff "must plausibly allege that (1) his or her speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him or her; and (3) there was a causal connection between this adverse action and the protected speech." Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018) (cleaned up).

A public employee's speech is protected by the First Amendment when "the employee spoke as a private citizen and . . . the speech at issue addressed a matter of public concern." Id. at 393. "To constitute speech on a matter of public concern, an employee's expression must be fairly considered as relating to any matter of political, social, or other concern to the community." Id. at 399 (internal quotation marks omitted). But speech that is "calculated to redress personal grievances-even if touching on a matter of general importance-does not qualify for First Amendment protection." Id. at 400 (internal quotation marks omitted). Likewise, the First Amendment does not protect speech that "principally focuses on an issue that is personal in nature and generally related to the speaker's own situation." Id. at 399 (cleaned up).

Quinones v. City of Binghamton, 997 F. 3d 461 (2nd Cir. 2021)