Retaliation For Speaking Out Against Social Injustice Is Protected By The First Amendment

A Florida county public defender, Howard Finklestein, must face a lawsuit from an assistant he allegedly fired because she spoke up about racial inequity in the justice system while running for office, a federal judge held, saying he should have known the firing could be problematic.

The U.S. District Court Judge refused to dismiss Ruby Green’s First Amendment retaliation case stating that the assistant public defender who was fired after she spoke out as a “citizen,” and not as a public employee. Green had campaigned for the public defender position and she lost her job the day after she lost the election. The County Public defendant stated that he decided to fire Green based on comments she made about social justice during her campaign for the job.

The Judge noted that not only were the Public Defender's actions “callous,” “there is no authority that could lead defendant Finkelstein, or any reasonable public employer, to believe that the acts in question were constitutional." "The allegations in the complaint sufficiently indicate that Green seeks constitutional protection for her public statements regarding social justice issues."

The Judge also noted that the issue was whether her firing could dissuade others from speaking publicly, and the court found the answer was yes.

In a case very similar to this, our office represents former assistant prosecutor Diane Ruberton who spoke out against gender inequality in the Atlantic County Prosecutor’s office. She asked for a meeting with County Prosecutor Damon Tyner. Ruberton complained about disparaging statements that Tyner and his two male executive officers were making about their wiives, other female assistant prosecutors and about a female State Superior Court Judge as well as the pay inequities of men and women within the Atlantic County Prosecutor’s Office.

Ruberton, an employee within the Atlantic County Prosecutor’s office for nearly twenty years, was fired by Tyner within days of his having received a 26 page memo from Ruberton identifying the inequities within the Prosecutor’s office.

This, as was the case brought by assistant public defender Green, is one of the the most stunningly brazen instances of First Amendment retaliation we have observed. Ruberton looks forward to a jury trial pursuant to which she will present evidence as to the inevitable abuse of power that ensues when a public official is permitted to operate unchecked.

Should you or anyone you know need assistance in dealing with fighting against the abuse of power in public employment, do not hesitate to contact the experienced employment law team at Burnham Douglass.

Categories