In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court held that the First Amendment’s Free Speech Clause would protect public employees from retaliation only if the employee’s speech touched on a matter of “public concern.” That is, government officials were free to retaliate against employees for raising matters of private concern, but not for matters of public concern. Myself, I don’t see this requirement when I read the First Amendment, but then I remember that the Constitution is a living document that can grow beyond the original intent of the Founders.

While much whistleblowing does raise matters of public concern, the Connick requirement remains on the books as a vehicle for hostile judges who want to steer a retaliation case over the cliff. Now the Third Circuit has pointed to a way around Connick:  the Petition Clause. Recall that the First Amendment prohibits legislators from abridging freedom of speech, or the right “to petition government for redress of grievances.” This “Petition Clause” is concerned not so much with the content of what people say in their petitions, but rather with the process of assuring that all people are free to submit petitions for the redress of grievances.  This is the rule that prohibits government from punishing Oliver for asking for more gruel.

That is what Charles Guarnieri did when the Borough of Duryea, Pennsylvania, fired him as police chief.  Guarnieri filed a grievance under his union contract. The arbitrator found that the Borough Council had fired him in retaliation for refusing to speak to the Mayor on the Council’s behalf, and ordered that he be reinstated with back pay. The Borough Council became upset and passed a set of ordinances that prohibited the police chief from working overtime, and made him personally liable for any overtime worked by the other officers. A federal court jury awarded him $45,358 in compensatory damages, and ordered the council members to pay $52,000 in punitive damages. The Third Circuit Court of Appeals affirmed the award of compensatory damages. The Court held that under the Petition Clause, there is no requirement that the petition relate to a matter of public concern.  The Court also held that punitive damages should not be awarded because the evidence did not show any animus greater than the animus of retaliation (concluding that such retaliation is not enough to show “reckless or callous indifference” to the federally protected rights of others). The Third Circuit also held that Guarnieri’s attorneys should be paid for all the hours spent on this case.

Now the Borough has appealed to the U.S. Supreme Court. My hero, Eric Schnapper of the University of Washington School of Law in Seattle, has written an outstanding brief urging the Supreme Court to decline the case. I urge anyone who cares about free speech and the right of petition to read his brief. The case awaits the decision of the Supreme Court.

UPDATE: On October 12, 2010, the U.S. Supreme Court agreed to accept the appeal of the Borough of Duryea, Pennsylvania.

UPDATE: On March 22, 2011, the Supreme Court conducted oral argument in Borough of Duryea v. Guarnieri. Guarnieri’s attorney, Eric Schnapper, brilliantly explained how the Petition Clause was clearly meant to cover petitions over private claims that involve no issues of public concern. From my read of the transcript, I foresee that the Supreme Court will reject the Borough’s claim that the Petition Clause is governed by the same public concern requirement as the Free Speech Clause.