Speech claim over gag order against police chief reinstated

A three-judge panel of the U.S. Court of Appeals in Cincinnati (6th Cir.) in late September reinstated the free speech claims in a federal lawsuit filed by the chief of police of Columbus. The claims concern an allegedly unconstitutional gag order that had been put in place against the police chief during the city’s investigation into his conduct.

The court of appeals ruled that the police chief had the right to pursue his allegation that his free speech rights had been violated by the gag order. A Columbus federal trial court had initially dismissed the lawsuit — including the free speech claims — before trial.

James Jackson serves as Columbus’s first African-American chief of police. During the fall of 1996, the mayor’s office announced that it had begun an investigation into Jackson’s allegedly improper conduct in office. In October 1996, Columbus Director of Public Safety Thomas Rice sent Jackson a letter directing him to refrain from making any statements to the media about the ongoing investigation.

The investigation led to allegations by the city that Jackson had failed to fairly discipline a commander within his department, had failed to efficiently manage the operations of the vice bureau, had failed to maintain police records in a homicide investigation, had failed to protect the integrity of the police department, and had used his position to influence hiring decisions for friends and family. In December 1996, the Columbus Municipal Civil Services Commission found that two of the charges had been proven.

Nine months after he placed the gag order on Jackson’s communication with the media, Rice published a draft report about the results of the investigation. Jackson claimed that the report contained “false and defamatory statements” and that Rice and other city officials had been motivated by racial animus.

Based in part on the gag order, Jackson filed suit in federal District Court in Columbus and alleged that Rice had violated his right to freedom of speech. In response, the city asked the court to dismiss the lawsuit, arguing the allegations — even if proven — would not support Jackson’s claim of a First Amendment violation. The court dismissed all of Jackson’s claims before trial.

Jackson appealed to the U.S. Court of Appeals (6th Cir.) in Cincinnati. He argued that the lawsuit contained allegations sufficient to support his free speech claim because the restricted speech described in the lawsuit had involved a matter of public concern and because his free speech rights outweighed the city’s interest in regulating his speech.

The city argued that the gag order did not fall within the First Amendment’s ambit because it only affected Jackson’s ability to speak about matters of private concern and was temporary in nature. The city also argued that its interest in promoting the efficiency of its public services outweighed Jackson’s interest in uninhibited speech, even if the gag order did affect Jackson’s ability to speak about matters of public concern. The city additionally argued that Jackson’s failure to allege what he would have said, but for the gag order, doomed his free speech claims. Finally, the city argued that the city’s defense of qualified immunity constituted a proper basis for dismissal.

In late September 1999, a three-judge court of appeals panel agreed with Jackson’s arguments that the trial court had improperly dismissed his free speech claims before he was allowed to develop his case any further.

The court noted that the state has an interest in regulating the speech of its employees. The court described the framework that the U.S. Supreme Court had used in similar cases: if a court determines that the speech in question involves a matter of public concern, the court must then decide “whether the interest of the employee, as a citizen, in commenting on matters of public concern outweighs the interest of the state, as an employer, in promoting the efficiency of the public services it performs.”

The court then addressed whether Jackson’s speech involved a public or a private concern. Jackson’s allegation that the case concerned racial discrimination did not automatically propel the dispute to the status of a matter of public concern, according to the court. Instead, it looked at the “close question” of whether Jackson’s restricted speech would have involved “a matter of political, social, or other concern to the community.”

The court determined that Jackson properly alleged his restricted speech concerned matters of public concern. It based its conclusion on Jackson’s status in the community, the investigation’s allegations of corruption and abuse of power, and Jackson’s allegations of racism. The court also ruled that the temporary nature of the gag order did not negate Jackson’s free speech claim.

The court then balanced the competing interests. According to the court, Rice had not allowed Jackson to speak because he feared that in Jackson’s discussions with the media “the issue of race would be raised, that it is a sensitive issue, and that it might ‘cause great concern within the black community.’”

The court further noted that Rice had not cited “any specific reason to support his fear that such speech would disrupt the community.” Therefore, the court concluded that the trial court improperly dismissed the case because it had not determined “whether a general fear of racial tension justifies the prior restraint on Jackson’s speech.” The court added that Jackson did not need to allege specifically what he would have said but for the gag order for his claim to make it to trial.

The court then noted that in order to overcome Rice’s qualified immunity defense, Jackson needed to allege that Rice would have known that his conduct violated a clearly established constitutional right. The court stated that Jackson had alleged a violation of “one of the most fundamental and established constitutional rights” and that it could not support dismissal of the case without further information about whether Rice “should have known that imposing a gag order on a high-ranking public official would violate this right in connection with an investigation about issues relating to public corruption by that official.” (Jackson v. City of Columbus)