Alaska Employment Law

A public employee - a community college faculty member - sent racially-controversial messages to fellow employees on an electronic bulletin.  Fellow employees asked the employer to discipline him, and when it refused to do so, sued the employer for damages under Title VII and the 14th Amendment.  The District Court denied the individual defendants’ motion on qualified immunity, which ruling went up on appeal.  The 9th Circuit has now vacated and held that the employee’s messages were constitutionally protected.

Judge Kozinski (writing for himself, former-Associate Justice Sandra Day O’Connor, and Judge Ikuta) held that the 1st Amendment protects such speech when issued by somebody who has no supervisory authority over the intended recipients.  Becasue the employer was constitutionally barred from penalizing the speaker, it could not be liable for  its (in)actions.

Rodriguez v. Maricopa County Comm. College Dist., ___ F.3d ___ (9th Cir. May 20, 1020)

Eugene Volokh has several posts, here and here (on application to private workplace), on the opinion.  Kozinski cited to Volokh’s law review article on the subject.