intrusive oversight by the judiciary in the name of the First Amendment.” Connick, 461 U.S. at 146. Effectively, “Connick erected a dichotomy between citizens speaking on matters of public concern and employees speaking on matters only of personal interest[.]” Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 256 (6th Cir. 2006).
Taken together, these three case means that, in order to establish a claim for First Amendment retaliation, Plaintiffs, as public employees, must show that (1) they engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against them that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by his protected conduct. Myers v. City of Centerville, 41 F.4th 746, 759 (6th Cir. 2022); Bennett v. Metro. Gov’t of Nashville & Davidson Cnty., 977 F.3d 530, 537 (6th Cir. 2020). Dr. Bruce insists that Plaintiffs have not established any of the elements of a prima facie case. In doing so, she advances several arguments, a couple of which border on the fanciful.
- 1. Speech of a Public Employee Versus Speech as a Private Citizen
Dr. Bruce first argues that Plaintiffs spoke as employees of TTU when distributing the flyers. If so, this would exonerate the university from liability because “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Garcetti v. Ceballos, 547 U.S. 410, 442 (2006). Because the government “has a broad right to control” its own speech, the “employer[] may discipline the employee[] for saying something unacceptable because this speech is effectively the government[.]” DeCrane v. Eckart, 12 F.4th 586, 595 (6th Cir. 2021) (citing Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009)).
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Case 2:21-cv-00039 Document 90 Filed 12/01/22 Page 11 of 27 PageID #: 8923
