By: Loyd Willaford and Clive Pontusson
In Vanderhoff v. City of Nanticoke, a federal court ruled that an officer’s suit for prior restraint of his free speech rights against the Chief of Police and the City may proceed. The Chief of Police had warned him not to speak out about misconduct in the Police Department.
Both Officer Amos Vanderhoff and his family had complained publicly about misconduct in the Nanticoke police department, including conflicts of interest, improper hiring practices and removal of court issued subpoenas. When the Chief of Police found out about this, he allegedly threatened Vanderhoff with discipline if he and his family did not stop talking about the Chief or the Department. Vanderhoff received an order explicitly directing him to “cease and desist conduct which could reasonably be expected to destroy public respect for Nanticoke City Police Officers and/or confidence in the Department.” Because he felt wrongly silenced by the Chief, Vanderhoff sued the Department and Chief of Police under many laws, including violation of his civil rights. After he filed his lawsuit, Vanderhoff received several write-ups and his conduct was scrutinized more than that of other Officers.
Vanderhoff argued in his complaint that his free speech rights had been violated because of prior restraint. This meant that the Chief had taken steps to intimidate him into not exercising his right to free speech. Vanderhoff alleged that the issues he wanted to speak up about were of great concern to the public. He also claimed that the write-ups he received following his decision to file the lawsuit were evidence of unlawful retaliation, because filing a lawsuit is an activity protected by the First Amendment.
The City moved to get Vanderhoff’s claims thrown out of Court, arguing that he had not alleged facts that the City had violated his civil rights, or any laws.
The Court decided that at this early stage of the lawsuit, it was improper to dismiss Vanderhoff’s claims against the City. The Court determined that Vanderhoff did state a claim for prior restraint in violation of his free speech rights:
First, Vanderhoff sufficiently alleges that the restrictions apply to matters of public concern… Second, the cease and desist order is not limited to a particular topic: it bars Vanderhoff from speaking negatively about the department and its employees. This suggests … that the restriction is targeted at speech Vanderhoff makes that are not part of his official duties.
The Court also determined that the discipline Vanderhoff faced after he started his lawsuit was a potential violation of his First Amendment rights. The Court concluded that,
A public employee’s filing of a lawsuit can qualify as a protected activity.
For these reasons, the Court held that Vanderhoff had a potential claim for violation of his rights both before and after he attempted to bring misconduct by the department to the public’s attention. As a result, his lawsuit against the City of Nanticoke will be allowed to continue.
This case illustrates an important tool which can be useful in certain instances: a suit to remove a prior restraint. Here, Officer Vanderoff was prohibited from conduct that is protected by the First Amendment: criticizing the department as a private citizen. An employee is not required to violate the policy and endure any punishment before bringing suit to have a court order the restraint illegal. In order to prevail on such a claim the employee has to show that the potential speech was “a matter of public concern” and the employer lacked “adequate justification” for the restraint. The Court then balances the employees and the employer’s interests to decide whether the restraint violates the First Amendment. See Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). In the present case, the broad nature of the restraint convinced the Court that Vanderoff could prevail on the claim, so the Court did not dismiss it.
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