Government Employees May Generally Be Disciplined for Sufficiently Controversial Public Political Speech
From Judge Kevin Newsom’s opinion today in Labriola v. Miami-Dade County, joined by Judges Robin Rosenbaum and Stanley Marcus:
John Labriola was a media aide for the Miami-Dade Board of County Commissioners. In his own name and on his own time, Labriola wrote an opinion piece that criticized the Equality Act, an as-yet-unenacted bill that would prohibit discrimination based on sex, sexual orientation, and gender identity.
In his piece, Labriola used inflammatory language to describe the LGBT people whom the bill sought to protect. He warned small-business owners “who resist surrendering their consciences to the new ‘tranny tyranny'” that, if the bill was passed, “[i]t’s going to be a choice of either baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business.” So too, Labriola warned local governments of what was to come: “No conservative small town in the South or Midwest will be safe from that weird study in perversity known as Drag Queen Story Hour, in which public libraries host a heavily made-up, flamboyant, homosexual pedophile in a dress who rolls around on the floor with little children as he reads them stories about gender fluidity and LGBT unicorns.”
Soon after, in an email to staff members of the Board of County Commissioners, a County citizen took issue with the opinion piece and questioned whether Labriola’s views represented the County’s. A County employee forwarded that email to the Miami Herald, after which the paper published an article describing the opinion piece as a “slur-laden tirade against transgender people.” At that point, the County received a barrage of phone calls from concerned residents.
Labriola’s supervisor suspended him from work for three days without pay and ordered him to schedule “training regarding the County’s anti-discrimination policies” within seven days and to complete that training within 30 days. According to the Disciplinary Action Report, Labriola’s supervisor’s employment decisions were partially grounded in Miami-Dade Implementing Order 7-45, an anti-discrimination policy that “prohibits all forms of discrimination and harassment.” Thirty days came and went, and, despite three written reminders, Labriola never scheduled the training. For his failure to do so, he was terminated….
“[T]he law is well-established that the state may not demote or discharge a public employee in retaliation for” exercising his First Amendment rights. But a public employee’s First Amendment rights are “not absolute.” That’s because “the State’s interest as an employer in regulating the speech of its employees differs significantly from those it possesses in connection with regulation of the sp
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