The Virginia Business Litigation Blog
Freedom of speech is protected by the First Amendment to the United States Constitution. In the employment context, the First Amendment offers special protection to state and federal employees. Public employees have some extra job security as they cannot (at least not legally) be terminated for exercising their free-speech rights. (If you work for a private company, the First Amendment doesn’t do much for you because it’s a limit on government power, not private entities). If a public employee gets fired for saying something his government employer didn’t like, he may, in appropriate circumstances, be entitled to pursue a Section 1983 claim for monetary damages.
If you’ve been following the drama down in Pound, Virginia, you know that the town is on the verge of collapse. Town funds were embezzled, the Town Attorney was fired, and so many council members quit that the council was left without a quorum and unable to conduct business. This is a place that actually did defund the police, terminating the employment of the town’s entire police department. The town may or may not exist at the end of next year. But back to the Town Attorney. As a public employee, he enjoyed the First Amendment right to freely express his personal views without giving his employer grounds to terminate him. But according to the complaint he filed against former Town Council member Clifton Cauthorne and others (a complaint which, as an interesting aside, appears to have been written with a typewriter), the Town fired him in retaliation for his criticism of the Town’s Mayor. A federal judge recently opined that if the allegations in the complaint are true, the Town violated the attorney’s First Amendment rights.
The basic facts, according to the opinion, go something like this. The Town of Pound hired Timothy W. McAfee, a Virginia lawyer, as Town Attorney back in July of 2018, for a term that was supposed to last six years. As Town Attorney, McAfee found himself frequently butting heads with other Town officials on matters relating to alleged corruption in local government. He became a frequent critic of Mayor Stacy Carson as well as councilmember Clifton Cauthorne, both of whom he felt were acting contrary to the Town’s best interests. In December of 2020, citizens of the town filed a petition to have Ms. Carson removed from office. McAfee was deposed in connection with that removal action and testified that in his view, Carson’s actions warranted her dismissal. Shortly thereafter, Cauthorne proposed that McAfee be terminated as the Town attorney. One of the reasons he offered was McAfee’s “criticizing the Mayor for her abuse of authority.” The motion passed, and 
McAfee sued for free-speech retaliation.
Cauthorne moved to dismiss the claim on various grounds but the court denied the motion and allowed the claim to proceed. On the First Amendment issue, the court noted that although the First Amendment protects public employees from termination in retaliation for speaking “as citizens” on matters of public concern, the right is not absolute. Instead, it must be balanced against the government’s interest in providing efficient public services. The court (citing McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998)), outlined the following elements to determine whether a public employee has pled a valid claim for retaliatory discharge:
- whether the employee spoke as a citizen on a matter of public concern;
- whether the employee’s interest in speaking on the issue outweighed the government’s interest in providing efficient services; and
- whether the employee’s speech was a substantial factor in their termination.
The court found all elements satisfied here. Testifying at a deposition is considered an act outside the scope of employment and a “quintessential example of speech as a citizen.” (See Lane v. Franks, 573 U.S. 228, 238-39 (2014)). It was irrelevant, the court held, that the citizen’s speech concerned information acquired by virtue of his public employment. McAfee’s interest in speaking truthfully at a deposition was more important than the Town’s interest in limiting that speech to provide effective services. There was nothing to suggest he testified in bad faith or that he disclosed confidential information. If the Town did have a compelling interest, it didn’t sufficiently identify it. Merely complaining generally of “disrepute, polarization, and divisiveness” does not demonstrate a compelling government interest in limiting speech.
Finally, McAfee had adequately alleged that his criticism of the mayor was a substantial factor in his termination. Therefore, the court found he had properly laid out a valid claim of being terminated in violation of his free-speech rights. To recover damages, McAfee will need to prove the above three elements at trial.