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If you work for an elected official, you should refrain from registering your “voter disapproval.”

Vanterpool v. Cuccinelli, Case 3:13-cv-513 (E.D. Va. Feb. 7, 2014). In this case, the plaintiff, Ms. Vanterpool, had been an Assistant Attorney General in Virginia. On May 5, 2012, an anonymous comment appeared on the website of the Washington Post, calling Virginia’s Attorney General Ken Cuccinelli an “egomaniac” who was never in his office and who was using his position only for self-promotion. Ten days later, on May 15, 2012, Ms. Vanterpool’s supervisor asked her if she had written the comment. IT employees in the Attorney General’s Office were attributing the comment to her. When Ms. Vanterpool denied “personally” posting the comment, she was suspended.

Two days later, she received a letter indicating that she was going to be terminated for being evasive and untruthful in her answer. Alternatively, she was given the opportunity to resign instead of being fired. On the same day, her supervisor requested to meet with her and asked her who had authored the comment. Ms. Vanterpool refused to answer the question. She later resigned.

Insult your boss, and you are likely to get fired. Most employees know this. But what if you are a public employee, exercising your right to speak on important public matters? And what if your boss is a very well-known politician? Does the First Amendment protect you from being fired? “No,” answered the federal court in Richmond and dismissed the plaintiff’s lawsuit.

Ms. Vanterpool sued Attorney General Cuccinelli and his chief deputy for violating her First Amendment rights by terminating her because of the comment. She also claimed that she was fired for refusing to reveal the identity of the author of the comment. This, too, she claimed violated her rights to free speech. Finally, she asserted that she was fired for political affiliation – for supporting Mr. Cuccinelli’s Republican rival in the race for Governor.

One important fact in this case is that Ms. Vanterpool did not sue the government, her employer. Rather, she sued two individuals: Mr. Cuccinelli and Mr. James, the chief deputy who suspended her and, subsequently, forced her to resign. Unlike the government, individual government officials have a powerful legal defense: qualified immunity. This legal defense comes into play when the alleged conduct of the government official – here, Ms. Vanterpool’s termination – violated a right that was not yet clearly established. In other words, when a government official operates in a gray area, where it is unclear whether the Constitution prohibits a certain act, then the official gets a free pass. The law protects government officials from liability in situations where errors are understandable. The underlying reason for this legal defense is that officials should not be in constant fear of litigation; instead, they should feel encouraged to act and to make decisions.

The court reviewed the First Amendment law as it pertains to the issue of whether “a policymaker, a privy to confidential information, a communicator, or some other office holder” could be terminated for political disloyalty, or for speech that constitutes such disloyalty. This specific area of the law was important here, the Court held, because Ms. Vanderpool was an Assistant Attorney General, a lawyer authorized to act as the alter-ego of the Attorney General.

Reviewing several opinions of the Fourth Circuit, the Court concluded that the law in this area was not sufficiently clear for government officials to know whether certain political patronage dismissals would violate the Constitution. Accordingly, the court found that the defendants were entitled to qualified immunity and dismissed Ms. Vanderpool’s case.

Ironically, the very fact that the law about First Amendment rights for public employees is so complicated makes resolution of these cases fairly easy for courts. The government official almost always wins on qualified immunity grounds, and the plaintiff who is challenging her termination almost always loses.

However, this opinion omits an interesting detail: under qualified immunity principles, the court is to analyze whether a reasonable person in the defendant’s position would know that his actions would violate a clearly established right. This hypothetical “reasonable person” is not a lay person but someone with the knowledge and training of the defendant. The particular defendants here were Virginia’s Attorney General and his deputy – essentially, Virginia’s top government lawyers. The Court never analyzes whether the law – however complicated it may be – was nonetheless clear to these attorneys.

If we take this opinion at face value then no one, not even Virginia’s Attorney General and his top legal aide, can understand First Amendment law as written by the Supreme Court and the Courts of Appeal. What does this conclusion say about our courts and their ability to clearly state the law? The law is deeply flawed and must be overhauled. As stated by the courts, the First Amendment offers little protection to the speaker: insult your boss at you own peril.

(The court also dismissed Ms. Vanderpool’s claims on other grounds that, while interesting, are outside the scope of today’s comments.)

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