Free Speech in the COVID-19 Era

Michael Tinti, CLS ’22

In Woolslayer v. Driscoll, the District Court for the Western District of Pennsylvania ruled on the intersection between First Amendment speech rights and the COVID-19 pandemic.[1] The plaintiff worked as the Director of Facilities Operation for defendants Indiana University of Pennsylvania for four years, receiving positive reviews from his employers throughout his tenure.[2] This changed in March of 2020, when—as we are all painfully aware—the COVID-19 pandemic first fastened its grip on United States’ workplaces. Upon learning that the spouse of a fellow employee had contracted the virus, the plaintiff—against the express recommendation from his supervisors—informed his fellow coworkers of this over email, and suggested they seek medical consultation.[3] Plaintiff was fired on the grounds that his supervisors “had lost confidence in [plaintiff’s] ability to effectively perform his assigned duties…”[4] Plaintiff subsequently commenced his suit, alleging a First Amendment retaliation claim under 42 U.S.C. § 1983.[5] Defendant moved to dismiss.[6]

Under the Supreme Court jurisprudence, a government employee whose speech was the but-for cause of their termination can be protected under the First Amendment Free Speech Clause if the speech was made as a citizen, the subject matter of the speech was of public concern, and the government-employer’s interest in the efficient functioning of the workplace does not outweigh the employee’s free speech interest.[7] The district court dispatched with the second and third issues quickly; the context of the COVID-19 pandemic bolstered the court’s conclusion that plaintiff spoke on a matter of public concern.[8]

The brunt of the district court’s First Amendment analysis, therefore, was focused on this first prong. Specifically, if plaintiff made his statements “pursuant to his official duties,” he would not be speaking as a citizen for First Amendment purposes.[9] The defendant pointed to the mode of plaintiff’s speech—an email sent from his work account exclusively to other university employees—as evidence the speech was made in plaintiff’s official capacity.[10] Yet the court dismissed this argument, finding that the mode of speech or its audience is not dispositive on the issue.[11] Rather, the court analyzed whether or not the plaintiff’s speech was “part of the work [he] was paid to perform on an ordinary basis.”[12] In his complaint, plaintiff asserted that his position did not grant him the power to speak in the name of a university policy maker, or to work in matters concerning the scope and nature of university functions.[13] Accepting these allegations as true, the court found that the plaintiff adequately plead he spoke as a citizen.

After finding that the plaintiff’s official capacity claim against the university president was not barred by the Eleventh Amendment, the court concluded that the plaintiff had adequately plead a retaliation claim under the First Amendment. The defendant’s motion to dismiss was thus denied.

Though the court ruled in favor of the plaintiff, the court’s reasoning is yet another indictment on the Garcetti jurisprudence. Paradoxically, an employee who has no professional responsibility to alert fellow employees of potential COVID exposure is protected by the First Amendment, yet an employee who does would not be protected, despite the clear public importance of performing such speech. Even if other state or federal statutes potentially protect against this form of retaliation, this critical chink in the First Amendment shield is troubling, to say the very least.

[1] 2020 U.S. Dist. LEXIS 186610 (W.D. Pa. 2020).

[2] Id at *2

[3] Id at *3.

[4] Id. at *3-4.

[5] Id. at *1.

[6] Id.

[7] See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Connick v. Myers, 461 U.S. 138, 146 1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[8] Woolslayer, supra at *10-11.

[9] Garcetti, 547 U.S. at 421

[10] Woolslayer, supra at *8.

[11] Id. at *8-9.

[12] Id. (quoting De Ritis v. McGarrigle, 861 F.3d 444, 454 (3d Cir. 2017)).

[13] Woolslayer, supra at *9.