Legal Alerts Sep 11, 2017

Ban on Officers Discussing K9 Program Violated First Amendment

Ninth Circuit Decision on Nevada State Highway Patrol Prior Restraint Case

Regulating speech by government employees is difficult enough. Disciplining an employee for violations of speech policies is degrees of difficulty greater. And, imposing a prior restraint on employee speech is perhaps the most challenging policy to defend. The U.S. Ninth Circuit Court of Appeals recently upheld a Nevada Highway Patrol trooper’s First Amendment civil rights claim for damages, and the case serves to illustrate how lightly government agencies must tread, dare the agency go there at all, in imposing a prior restraint on employee speech.
The Nevada Highway Patrol operates a K9 program that supports using dogs to curtail drug trafficking activities along highways commonly used by drug couriers. One such highway is Interstate 15 linking Southern California to Las Vegas, Nev. A citizens group voiced concerns about the use of dogs in this effort to both Nevada legislators and the Governor’s Office, prompting inquiries to the NHP.
The K9 program was re-organized, and its leader, Major Kevin Tice, sent an email to all K9 program employees and officers, including Trooper Matt Moonin, prohibiting them from having direct contact with any non-NHP or non-law enforcement agency “for the purpose of discussing the Nevada Highway Patrol K9 program or interdiction effort.” An avowed purpose of this edict from the command staff was to prevent communications with the citizens group.
Moonin sued, claiming violations of his civil rights because the directive was an unlawful prior restraint on his speech in violation of the First Amendment. The trial court ruled that Tice’s email was an unlawful prior restraint and that Moonin was entitled to damages. Tice and the State of Nevada appealed to the Ninth Circuit.
The appeals court began by recognizing that citizens do not surrender their First Amendment rights by accepting public employment. Indeed, the court noted that public employees are often in a unique position to know and reveal what ails the agencies they work for and to thereby contribute to the public discussion. At the same time, public agencies do need significant control over their employees’ words and actions; therefore, some restraints on public employees’ speech might be permissible that would not be if applied to the general public. It is a matter of balancing the interests.
A court will weigh the impact of a ban as a whole — both on the employees whose speech may be curtailed and on the public interested in what they might say — against the restricted speech’s necessary impact on the actual operation of the government. Further, the court will look at whether the restriction reaches only speech within the scope of a public employee’s official duties, and whether it impacts speech on matters of public concern. If solely limited to the employee’s duties, the inquiry ends and the restriction is permitted because the employee is not speaking as a citizen.
In this case, the restriction went far beyond the trooper’s official duties. Here, the restriction applied not only to speech intended for the media, but also to speech directed to community groups, to city and state legislators, to state and federal officials, and even to family members and friends. Second, the court had no problem finding that the potential speech involved a matter of public interest. The prohibited speech did not concern sensitive law enforcement tactics or intelligence, or personnel matters, for example. Rather, it related to the conduct of an entire law enforcement program, including the expenditure of public resources and fall-out effects on citizens’ constitutional rights.
The court found late last month that Tice’s and the State’s justification for the restriction — some potential to effect its operations — failed to justify the sweeping policy restricting all speech about the program to virtually anyone. In other words, the State’s concern for its operational interests could have been served by a far more carefully drawn and narrower restriction.
The court’s decision provides both a roadmap for, and a cautionary tale concerning, government agency policies that impinge on the speech rights of its employees. Policy makers need to take extraordinary care in fashioning policies that restrict what employees may say, and to whom, and be prepared to provide ample justification that such policies serve the legitimate interests in the operations of the agency — and are narrowly tailored to serve only those interests.
If you have any questions about this opinion or how it may impact your agency, please contact the authors of this Legal Alert listed to the right in the firm’s Government Policy & Public Integrity practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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