Olga Zuniga has sued the Texas Court of Criminal Appeals and Justice Kevin Patrick Yeary, alleging that they fired her from her executive assistant job in violation of her First Amendment rights for her political posts on Facebook.

Does she have a case? Because she's a government employee, the answer is potentially yes.

Ms. Zuniga's federal lawsuit is here. Ms. Zuniga asserts that she was an "executive assistant/secretary" on the court for 14 years, responsible for filing, copying, calendaring, and other administrative duties. She became an administrative assistant to Justice Yeary, an elected Republican, in 2014. She asserts that Justice Yeary himself routinely posted partisan political issues on social media. In 2016, Justice Yeary noticed that Ms. Zunga's Facebook page had posts critical of Republicans including President Trump and supportive of Democratic candidates and issues. He "counseled" her about her posts, and on several occasions expressed disapproval of her posts and views expressed there. Ms. Zuniga alleges that in September 2017, after seeing her Facebook posts critical of Texas Governor Abbott and Lt. Governor Patrick about immigration issues, Justice Yeary terminated her, citing her Facebook posts and later fighting her attempts to get unemployment insurance. Note that these are just her claims; they are not yet proven. Her suit asserts that Justice Zuniga and the court violated her First Amendment rights under color of law under Title 42, United States Code, Section 1983 by firing her from her government job for speech.

I've frequently written about the First Amendment rights of public employees. The First Amendment only protects you from censorship by the government. So if your private employer fires you for your speech, it's not a First Amendment violation. (It might violate a state or local law, and might violate a whistleblowing statute or some other provision, but it's not a constitutional violation.) But when the government is your employer, firing you for speech takes on First Amendment significance.

That doesn't mean you can say anything you want at work as a public employee. Even though the First Amendment applies, that doesn't mean you win. There's a multi-part test.

The first question is whether your speech is on an issue of public interest. If your speech isn't — for instance, if your speech is "Doris in Human Relations is an asshole" — then the First Amendment doesn't protect you from a public employer disciplining or firing you for it. Here, Ms. Zuniga's Facebook posts, as she describes them, are definitely about issues of public interest: politics and political leaders.

The second question is whether or not your speech is part of your job duties. If it is, the First Amendment doesn't govern your employer's reaction. You can be fired or disciplined for on-the-job speech: the First Amendment does not protect a cop swearing at a citizen during a traffic stop, a press secretary flipping out from the podium, or a government mid-level manager insulting a subordinate during a job review from job-related consequences. I discussed this in Episode Three of the Make No Law Podcast and interviewed Richard Ceballos, whose Supreme Court case firmly established this proposition. Sometimes the question of whether speech is part of a public employee's job duties is cloudy. Here it isn't: Ms. Zuniga is a clerical assistant and her personal Facebook page has nothing to do with her job duties.

The third question, if the employee survives the first two, is a balancing test — called the Pickering–Connick Test after the two cases that established it. In determining whether a public employer's discipline of an employee for speech violated the employee's First Amendment rights, a court must balance the employee's interest in free speech on the issue in question with the public employer's interest in the orderly and efficient operation of the public entity. The more that the employee is speaking in their private capacity on an important public issue, the more their interest weighs; the more the speech causes demonstrable workplace disruption or interference with function, the more the employer's interest weighs. It's not, obviously, a science.

Here, I think Judge Yeary and the court would have a very difficult time establishing that the balance weighs in favor of disciplining Ms. Zuniga. Ms. Zuniga asserts that there were no public complaints about her posts, that they didn't cause disruption in the workplace (other than Justice Yeary's demands). To the extent that Justice Yeary or or the court assert that the problem is that a court employee must appear neutral and not make any partisan political statements in their private capacity or they will impede the perceived neutrality of the court, that argument seems very weak in light of (1) the fact that Ms. Zuniga was only a clerical employee who had no input into the resolution of cases, and (2) she asserts that Justice Yeary and other court employees routinely made political comments in their private capacity without discipline.

Don't judges have absolute immunity from lawsuits? Well, yes, — when they stay in their lane. Generally judicial immunity completely protects judges from lawsuits over their judicial decisions — their rulings in cases. But that immunity does not extend to administrative decisions and does not protect them from employment discrimination lawsuits.

There may be legal impediments arising from Ms. Zuniga suing the entire court rather than just Justice Yeary, which are too dull to go into here. But if the basics of her complaint are true, Justice Yeary has a real problem here. His most plausible defense would have to be that Ms. Zuniga was actually fired for something else and not because of her speech, because unless she's dramatically misrepresenting the nature of her Facebook posts or their impact at work, Justice Yeary does not have a very plausible argument for firing her over them. In fact, to the extent Justice Yeary represented to her that he could dictate what she could write on Facebook, he's either legally ignorant or dishonest or both, and his suitability to be a judge should be in question. However, allegations in a lawsuit are not facts; they are allegations.

Last 5 posts by Ken White