Amy Harnishfeger v. United States, 943 F.3d 1105

Background

Amy Harnishfeger published a pseudonymous memoir about her time as a phone‑sex operator (Conversations with Monsters) in May 2016 and announced it on a private Facebook page on June 2, 2016.
She began a VISTA placement with the Indiana Army National Guard on June 24, 2016 performing largely clerical database work; her public-facing contacts for the Guard were minimal and infrequent.
Her Guard supervisor Noelle Butler became her Facebook “friend,” found the book announcement after searching many posts, bought the book, and informed Lt. Col. Lisa Kopczynski.
Kopczynski demanded CNCS (AmeriCorps/VISTA administrator) remove Harnishfeger from the Guard placement; CNCS put her on administrative hold, offered reassignment if she deactivated Facebook, and eventually terminated her for failure to secure a new sponsor.
Harnishfeger sued individual defendants (state Guard officers) and federal CNCS officials and the United States under the First Amendment, § 1983, and the APA; the district court granted summary judgment for defendants.
The Seventh Circuit reversed in part: it held Kopczynski (state actor) could be liable for First Amendment retaliation and is not entitled to qualified immunity on summary judgment, but affirmed summary judgment for the federal defendants and the APA claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harnishfeger’s book is constitutionally protected speech	Book was written and published before VISTA service, unrelated to job duties, addressed to public—so protected under NTEU/Pickering	Book author was linked to Guard via Facebook activity and job‑related posts, so linkage removes NTEU protection	Speech protected: NTEU path applies; Pickering balancing required and favors plaintiff
Whether Pickering balancing justifies removal	Harnishfeger: Guard produced no evidence of actual or foreseeable disruption; duties were clerical and not tied to book content	Defendants: book harms Guard image, undermines domestic violence prevention message, and could impair effectiveness	Held for plaintiff: defendants offered flimsy, speculative harms; Pickering does not support removal
Whether Kopczynski acted under color of state law for § 1983	Harnishfeger: Kopczynski was a state Guard officer exercising state supervisory authority	Defendants: VISTA is a federal program, so actions were federal, not state, in nature	Held for plaintiff: Guard actions were state action (not federalized), so § 1983 applies
Whether Kopczynski has qualified immunity	Harnishfeger: law clearly protected non‑work, non‑job speech; employer needed evidence of disruption—none here	Kopczynski: reasonable official could have believed removal lawful given perceived linkage and image concerns	Held for plaintiff: qualified immunity denied because law was clearly established and employer lacked reasonable disruption evidence
Liability of CNCS/federal officials and APA claim	Harnishfeger: CNCS officials effectuated termination and imposed onerous reassignment conditions; agency action arbitrary and violated rights	Federal defendants: they followed procedures, did not personally participate in the Guard’s removal decision, and termination was for lack of suitable assignment	Held for defendants: no evidence federal officials personally caused the constitutional violation; APA challenge fails as agency action was not arbitrary on the record

Key Cases Cited

United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (protects off‑duty, non‑job speech addressed to public from blanket employer restriction; triggers Pickering balancing when not linked to job)
Pickering v. Board of Education, 391 U.S. 563 (1968) (balances employee speech interests against employer efficiency interests)
Connick v. Myers, 461 U.S. 138 (1983) (threshold test for public‑concern speech and Garcetti/Connick framework)
Garcetti v. Ceballos, 547 U.S. 410 (2006) (speech made pursuant to official duties is not protected)
City of San Diego v. Roe, 543 U.S. 77 (2004) (NTEU/Connick distinction; deliberate linkage to job can defeat protection)
Rankin v. McPherson, 483 U.S. 378 (1987) (limits on disciplining low‑level clerical employees for private speech absent real impact on employer)
Gustafson v. Jones, 290 F.3d 895 (7th Cir. 2002) (Pickering balancing and qualified immunity: employer must show actual disruption or reasonable basis to predict it)
Knutson v. Wisconsin Air Nat’l Guard, 995 F.2d 765 (7th Cir. 1993) (National Guard official acts under state law when unit is not federalized)
Craig v. Rich Township High School Dist. 227, 736 F.3d 1110 (7th Cir. 2013) (deliberate linkage of a teacher/counselor’s book to his professional role can defeat NTEU protection)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (personal participation requirement for constitutional claims)