The Ninth Circuit recently held that a public employee’s free speech right was not violated where his employer restricted him from speaking with potential witnesses and other employees regarding an internal investigation into the employee’s alleged misconduct. Roberts v. Springfield Utility Board, No. 21-36052, 2023 WL 3402213, at *3-4 (9th Cir. May 12, 2023). The court reasoned that there was no First Amendment violation because the speech restriction did not limit the employee’s freedom to speak about matters of public concern.
In September 2019, the Springfield Utility Board opened an investigation into whether Roberts violated personnel policies. The employer informed Roberts that he, but not his attorney, was restricted from discussing the investigation with other employees while it was ongoing. Roberts filed suit, alleging the restriction violated his constitutional right to free speech. The Ninth Circuit found that Roberts’ own work misconduct was not of public concern, and because the restriction pertained only to communication with potential witnesses regarding the ongoing investigation, Roberts’ freedom to engage in discourse regarding his employer’s performance of its public duties was not obstructed. This decision provides additional insight into what the Ninth Circuit does and does not consider matters of public concern that could implicate the First Amendment and shows that merely because an employer is public does not mean that it cannot restrict certain speech pertaining to an employee investigation.
