from the shut-up,-they-explained dept

Having lost twice in a row, a handful of Missouri state clerks will now be using taxpayers’ money to pay a former government employee who had the temerity to recommend a mask mandate during the height of the COVID pandemic. (via Short Circuit)

The plaintiff, Tad Mayfield, had been a well-regarded staffer, serving as a legislative specialist while working in the assistant clerk’s office of the state House of Representatives. It was a job he had held for more than seven years before the clerk’s office fired him for daring to (respectfully) ask questions about preventative measures (or, rather, lack thereof) he felt were essential as the spread of COVID continued around the nation.

Every member of the House legislative staff was ordered to work from home in March 2020 as the first wave of infections flooded across the nation. Less than four months later, the governor of Missouri was already trying to institute some sort of “return to work” mandate — one that was accompanied by almost nothing in terms of efforts to limit contagion.

In early August, Tad Mayfield — one of the people being told to return to the office — wrote a very respectful letter raising his concerns about putting people back in close proximity while the outbreak was still far from under control. The entire letter is reproduced in the Eight Circuit Appeals Court decision [PDF], but this should give you a pretty good idea of its tone, as well as what Mayfield was requesting.

It is important to consider, Members from every district in this state are convening in our chambers and then returning to their respective communities to continue campaigning and holding fundraisers for their reelection bids, or assisting in the election of their successors. It compounds an already serious health crisis for Members to unknowingly contract or transmit COVID-19, due to the lack of a mask mandate in our Capitol, and then return home to unknowingly transmit it to their constituents. All this while hundreds if not thousands of new cases are reported in our state every day.

For the health and well-being of all who enter our Capitol, I am requesting that you, as leadership in the House and Senate, adhere to CDC guidelines and implement a mandatory face mask policy for all spaces within our Capitol, excluding the personal office spaces of Members.

None of what’s stated here can be argued. In August 2020, the state was averaging between 1,200-1,400 new cases a day. Mask mandates had been shown to limit infection. And, most undeniably, Missouri governor Mike Parsons was opposed to mask mandates in general.

Three days after his letter was sent, Mayfield was fired by the clerk’s office, supposedly due to performance issues that had somehow failed to present themselves during his previous seven years of employment.

The lower court denied immunity to the government officials and the case proceeded to trial. The jury found in favor of Mayfield and awarded him $15,000 in punitive damages on top of another $15,000 in lost wages.

The letter undeniably dealt with “issues of public concern,” the sort of thing that receives plenty of deference when it comes to First Amendment litigation. The officials tried to argue that it wasn’t Mayfield speaking up about public concerns, but rather using “public concern” as “window dressing” to disguise his reluctance to comply to a return-to-office mandate from the clerks’ office.

The Eighth Circuit says Mayfield’s personal differences with the return-to-office mandate (which were expressed privately to his immediate supervisors) have no bearing on this open letter sent to legislators, which is undeniably protected speech.

The August 3 email’s form and context do not change the result here. Mayfield sent a formal email from his work address to his elected representatives, and he sent it in the context of the COVID-19 pandemic, at a time when many staff and elected representatives were planning to convene at the state capitol. The fact that Mayfield previously shared his private concerns about COVID-19 with his superiors and human resources representative does not change the nature of the August 3 email: a public employee’s request for individual accommodation does not waive that employee’s right to later speak about a related “subject of general interest and of value and concern to the public.” See Lane, 573 U.S. at 241 (internal quotations omitted). And Defendants cite no authority indicating such a limitation exists.

There’s no “how dare you go over my head” exception the First Amendment, which is what this argument really is, even if the defendants took as much care as possible to present it as a disingenuous by a rogue employee they decided to fire because they didn’t like the things he was saying.

The sued officials also tried to claim the email sent by Mayfield had the potential to have a “substantial negative impact on the [state] House [of Representatives]” — something that would have justified the ensuing firing of the staffer. That argument is a non-starter, the Appeals Court points out, because these same officials repeatedly claimed this email played no part in their decision to fire Mayfield. You can’t have it both ways, says the Eighth, affirming the lower court’s denial of the officials’ motion to dismiss.

There’s no qualified immunity to be had, either. The law was clearly established by the time the officials decided to fire Mayfield in retaliation for his mask mandate letter.

Defendants argue that for a right to be clearly established, a plaintiff must cite cases where the speech was on the same topic (here, public health and safety), and the speech must have been made by a particular kind of employee (nonpartisan), within a particular type of government body (deliberative), and to a particular colleague (partisan leadership). But we do not require such “a case directly on point.” al-Kidd, 563 U.S. at 741; see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and . . . a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.’” (second alteration in original) (quoting Creighton, 483 U.S. at 640)). Defendants had fair notice that terminating Mayfield for criticizing the decisions of public officials violated the First Amendment.

That’s how the government likes to read the qualified immunity doctrine. And many courts tend to agree with that interpretation. But not here — not in these two consecutive courts that have arrived at the same conclusion. The First Amendment tends to fare better than the Fourth in cases like these, but even here, it’s undeniable it’s a violation of rights to fire someone for saying something other government employees disagree with.

The officials liable for damages are playing with house money so there’s no reason to believe they won’t appeal this to the Supreme Court. But considering how few decisions the nation’s top court can be bothered to hand down these days, it would likely be another waste of time and money, even if some justices would definitely like to take a swing at creating a First Amendment exception that excludes speech they personally disagree with.

Filed Under: 1st amendment, dana miller, elijah haahr, emily white, free speech, judy kemper, missouri, missouri senate, qualified immunity, retaliation, tad mayfield