“there can be no First Amendment claim when an employee is falsely accused of making statements uttered by someone else”
How later courts described this case
- “there can be no First Amendment claim when an employee is falsely accused of making statements uttered by someone else”
- “Parties 18 ordinarily are not permitted to assert constitutional rights other than their own.”
- “Parties ordinarily are not permitted to assert 15 constitutional rights other than their own.”
- “Parties ordinarily are not 5 permitted to assert constitutional rights other than their own.”
Written by the judges who cited it.
The opinion
FLETCHER, Circuit Judge,
Dissenting:
I respectfully dissent. The majority disposes of this case on the grounds that Sylvia Wasson failed to state a claim under the First Amendment. It holds that because she denies writing a series of letters that were imputed to her by her employer, she has no standing to challenge 'and seek recompense for the retaliation she suffered — a threat of firing, placement on forced administrative leave, and public humiliation. The majority completely ignores the chilling effect its holding will have on her as well as other, individuals. *664 seeking to exercise their right to speak anonymously.
The majority would resolve this case by finding that Wasson does not have standing to assert another’s rights to anonymous speech. But the right at stake is her right not to be retaliated against for speech she either made anonymously or did not make at all. She has been injured. The majority finds Waters v. Churchill, 511 U.S. 661 , 114 S.Ct. 1878 , 128 L.Ed.2d 686 (1994) inapplicable because in Waters the plaintiff acknowledged speaking but disputed what was said. Justice O’Con-nor’s plurality opinion acknowledged that a public employer violates the First Amendment when it does not conduct a reasonable investigation as to what was said. I would find Waters fully applicable in the setting of this case: to determine what wasn’t said by the employee is equally as important as determining what was said. In this case as well as Wafers, the issue is whether the employee was wrongfully accused and whether the utterance was or was not protected.
The employer should not escape liability unless it proves both that Wasson was the speaker and further, that if she were the speaker, her speech was not protected (i.e. not on a subject of public importance).
Anonymous speech has long been protected by the First Amendment. As the Supreme Court has reminded us, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” Talley v. California, 362 U.S. 60, 64 , 80 S.Ct. 536 , 4 L.Ed.2d 559 (1960); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 , 115 S.Ct. 1511 , 131 L.Ed.2d 426 (1995) (discussing central role of anonymous speech in free marketplace of ideas). I cannot join the majority in holding that the protection provided by the First Amendment does not extend to Wasson, an individual who has been targeted and punished for allegedly uttering anonymous speech on the grounds that she denies making the statements at issue.