Whitney v. City of Milan, 677 F.3d 292

Background

Whitney, a Milan, Tennessee city employee since 2006, was later assigned to a deputy clerk position in the city court clerk's office.
Whitney and the then-City Recorder Williams had a strong personal relationship; after Williams was fired in Sept. 2008, Crider ordered Whitney to end all contact with Williams and not to call or text her, not to promote Williams's allegations, and not to assist with any lawsuit Williams might file.
Williams filed a gender-discrimination and retaliation suit against the City after her termination, alleging acts related to public corruption.
Whitney filed a §1983 action in May 2009 asserting, among other things, a First Amendment prior-restraint claim against Crider.
The district court denied Crider’s summary-judgment motion on the qualified-immunity defense, and Crider appealed the denial on legal grounds.
The Sixth Circuit affirmed, holding Crider violated a clearly established First Amendment right by restricting Whitney’s speech on matters of public concern.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Crider's orders were a prior restraint on speech	Whitney argues the gag orders chilled her speech about public matters.	Crider contends the orders were permissible workplace management to prevent disruption.	Yes; it was a First Amendment prior restraint on speech about public concerns.
Whether the restricted speech involved a matter of public concern	Whitney’s speech about alleged public corruption and discrimination involved public concerns.	Crider argues the speech did not involve public concern or was personal in nature.	Yes; the speech involved matters of public concern.
Whether the Pickering balancing favored Whitney	Whitney’s private-speech interests outweighed employer interests in efficiency.	Crider contends workplace harmony justified restricting the speech.	Whitney’s interest outweighed Crider’s; the restriction failed the Pickering balance.
Whether the right was clearly established to defeat qualified immunity	Whitney argues the right to speak on public-corruption matters was clearly established.	Crider argues the right was not clearly established for his actions.	Yes; the right was clearly established, so Crider was not entitled to qualified immunity.

Key Cases Cited

Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (two-step qualified-immunity test (abrogated in part by Pearson))
Graham v. Connor, 490 U.S. 386 (U.S. 1989) (unreasonable-seizure standard for excessive force; cited for constitutional-right analysis framework)
Pickering v. Bd. of Educ., 391 U.S. 563 (U.S. 1968) (public employee free-speech balance between speech and workplace efficiency)
Connick v. Myers, 461 U.S. 138 (U.S. 1983) (public employee speech balancing framework)
Farhat v. Jopke, 370 F.3d 580 (6th Cir. 2004) (public employee speech on matters of public concern)
Brandenburg v. Houston Authority of Irvine, 253 F.3d 891 (6th Cir. 2001) (speech as public concern and information about government)
Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003) (defining public-concern speech)
See v. City of Elyria, 502 F.3d 484 (6th Cir. 2007) (public corruption allegations involve public concern)
Miller v. City of Canton, 319 Fed.Appx. 411 (6th Cir. 2009) (public corruption and discrimination speak to public concern)
Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999) (allegations of corruption and abuse of power involve public concern)
Kindle v. City of Jeffersontown, 374 Fed.Appx. 562 (6th Cir. 2010) (speech about public agency efficacy and misconduct implicates public concern)
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) (magnitude of public concern tied to speech about education board)
Whitney v. Dayton, 440 F.3d 306 (6th Cir. 2006) (Silberstein-related qualified-immunity discussion)