"no evidence that their previous political activity actually interfered with the effective performance of their jobs"
How later courts described this case
- "no evidence that their previous political activity actually interfered with the effective performance of their jobs"
- considering whether employee’s speech was “sufficiently hostile, abusive or insubordinate as to *797 disrupt significantly the continued operation of the [employer’s] office”
- considering whether employee’s speech was "sufficiently hostile, abusive or insubordinate as to disrupt signif- icantly the continued operation of the [employer’s] office"
- "[T]he fact that the deputies were terminated by a ‘failure to rehire’ rather than a ‘dismissal’ is irrelevant to the question of whether *780 they were impermissibly terminated for exercising First Amendment rights.” (footnote omitted) (citing Branti)
Written by the judges who cited it.
The opinion
ALVIN B. RUBIN, Circuit Judge,
with whom RANDALL and PATRICK E. HIGGINBOTHAM, Circuit Judges, join, dissenting:
Political belief, association, and activity are at the core of the activities protected by the first amendment. 1 A public official has no greater right to tell a public employee what candidate to support or how to vote than he has to tell that employee what church he may attend or what books he may read. Neither may officialdom punish an employee by failing to rehire him because he read the wrong books, attended the wrong church, or supported the wrong politician. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 2
The spoils system, which views public employment as pure political patronage, inhibits the free functioning of the electoral process. “Conditioning public employment on partisan support prevents support of competing political interest.” 3 By holding a public employee’s job hostage to his political activities or affiliation, the rebirth of the spoils system sanctioned by the majority allows an incumbent or a victorious chal *1018 lenger to accomplish indirectly what neither could legally do by mandate: the coercion of political support from the public employee.
The first amendment protects a public employee when he expresses and acts on political beliefs no less when he supports a losing candidate than when he adheres to a losing political party. Its armor does not guard only “abstract political views” held in pectore or expressed by simple party affiliation: it protects the entire range of free expression of beliefs and actions so long as they do not adversely affect the public employee’s ability to perform his job efficiently. Without violating the first amendment, the state and its agencies may discharge, refuse to hire, or fail to rehire an employee for no reason or for any reason at all save one: it may not retaliate for the employee’s exercise of his rights of free expression. Public employment does not demote the jobholder to second-rate status under the Constitution. The majority opinion tears holes in these established protections by finding qualifications of them in Connick v. Myers, 4 a Supreme Court opinion that dealt with a different problem but, insofar as it here applies, fully endorsed each of the principles just stated. I, therefore, respectfully dissent.
I.
Because we are neither legislators nor constitution-writers, but appellate judges, let us start, as all cases must, with the facts. The panel opinion was vacated by our order to rehear the ease en banc. 5 The majority opinion expressly declines to reinstate the panel opinion. Nothing in the majority opinion states that the district court factfindings are clearly erroneous, nor indeed, on the record before us, could they be found in error. Yet the majority opinion vacates those findings. In doing so, it disregards the mandate of Fed.R. Civ.P. 52(a), as reinforced by Pullman-Standard v. Swint, 6 Even when an appellate court remands for application of a new rule of law, it is not given the option of disregarding the district court’s fact-findings by simply saying, “rub it all out and start over.”
In Jim Hogg County, the Democratic party dominates the political landscape. Party nomination, therefore, ensures victory in the general election. Gilbert Ybanez opposed the incumbent Sheriff, Juan Ramirez, for the Democratic party nomination. Ybanez ran on a platform that promised the voters a change in administration. The campaign was spirited. Each candidate sponsored parades and rallies, locally called “pachangas.” Three of the field deputy sheriffs who had been employed by Ramirez campaigned actively on his behalf. One of the dispatchers, Stephanie Spencer, also supported Ramirez. There is no intimation in the record that any of these employees attacked Ybanez personally or did anything unseemly in the slightest. The other dispatcher, Jimmie MeBee, who was also Ramirez’s secretary, apparently took no part in the campaign. Ybanez won the Democratic primary and was elected, without opposition, in the general election.
“Ybanez candidly testified that it was the existing custom in Jim Hogg County for a new sheriff to fire all the staff of his predecessor ... to bring in ‘his own people.’” 7 Ramirez’s term ended December 31. A few days before then, Ybanez telephoned Ramirez and told Ramirez that he was to inform his employees that they were no longer to be employed by the sheriff’s office unless Ybanez communicated with them.
The sheriff’s office employed six deputy sheriffs, four dispatchers, and three custodians (who apparently did janitorial *1019 work). 8 Ybanez rehired one deputy, one dispatcher, and the three custodians. Three of the deputies and two of the dispatchers who were not rehired contend that Ybanez’s failure to rehire them was in retaliation for their exercise of their first amendment rights.
Ramirez testified that all of the deputy sheriffs and dispatchers were competent employees who were satisfactorily performing their jobs. Ybanez never asked Ramirez for an evaluation of the job performances of any of them. According to the district court, Ybanez testified that he had no reason to believe that “any persons he employed [after he took office] were any more qualified than the people they replaced.” Three of the deputy sheriffs who were replaced were Certified Peace Officers. At least two and possibly three of the new deputies hired by Ybanez were not certified.
The district court found that Ybanez based his employment decisions “entirely upon his perceptions as to the extent of prospective employees’ support for and loyalty to him and his candidacy.” “He made statements to the effect that he wanted ‘his people’ in office and that ‘politics was politics.’ ” “He conceded that his appointees were no more qualified than their predecessors and indeed the evidence confirms that, at least as to the field deputies, they were definitely less qualified.” “[T]he failure to continue the employment of the plaintiffs was motivated by an intent on the part of Ybanez to remove them in order to make room for his own political supporters.” While Ybanez offered reasons for not rehiring the three fired deputies, the district court found them “pretextual afterthoughts, offered to justify his political decisions.”
After making these findings, the district court stated the issue before it: “does the Elrod — Branti rationale apply when employment decisions are based upon the support of and loyalty to an individual politician as distinguished from a political party”? It answered, “Yes,” and so do I. To understand why that answer is correct, we must turn to the Supreme Court cases.
II.
After the nation had for almost two centuries accepted political patronage as a political right and reality, the Supreme Court first assessed the relationship of the spoils system and the first amendment in Elrod v. Burns. 9 The plurality (Justices Brennan, White, and Marshall) there stated the question before the court:
Whether public employees who allege that they were discharged or threatened with discharge solely because of their partisan political affiliation or nonaffiliation state a claim for deprivation of constitutional rights secured by the First and Fourteenth Amendments.
427 U.S. at 349, 96 S.Ct. at 2678, 49 L.Ed.2d at 551. The opinion did not concern mere “abstract” party loyalties, for in that case the employees were not only “required to pledge their political allegiance to the Democratic Party,” but they were required also to “work for the election of other candidates of the Democratic Party, contribute a portion of their wages to the Party, or obtain the sponsorship of a member of the Party, usually at the price of one of the first three alternatives.” 427 U.S. at 355, 96 S.Ct. at 2681, 49 L.Ed.2d at 555.
The majority opinion echoes the Court’s plurality opinion in Elrod when it says that “the prohibition on encroachment of First Amendment protections is not an absolute.” 10 That starts our inquiry, but it does not end it. Restraints on first amendment rights are permitted for appropriate reasons. The question is what restraints are permissible and when. Even beliefs and associations may be made a condition of public employment if they are demonstrably relevant to the requirements of the *1020 job in question. 11 Employees may be discharged, not hired, or not continued in public employment for good cause, or, indeed, for no reason at all so long as their exercise of first amendment rights is not the reason. Even patronage hiring and dismissals are permissible for persons in confidential or policymaking positions. 12
While all the views expressed in Elrod’s plurality opinion did not gain majority support, there is no doubt that the holding of the case, which is directly applicable here, did. Justice Stewart, with whom Justice Blackmun concurred, stated it succinctly:
The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.
Id., 427 U.S. at 375, 96 S.Ct. at 2690, 49 L.Ed.2d at 566.
Almost five years later, the Court affirmed this holding in Branti v. Finkel. 13 That case involved a public defender who threatened to terminate the employment of six out of nine assistant public defenders, serving at his pleasure, because they were Republicans. According to the trial court, “the evidence show[ed] that the only reason for which [the public defender] sought to terminate plaintiffs as assistants was that they were not recommended or sponsored pursuant to the procedures that had been decided upon by the Democratic caucus.” 445 U.S. 508, 510, n. 5 , 100 S.Ct. 1287 , 1290 n. 5, 63 L.Ed.2d 574 , 579 n. 5.
Six members of the Court joined in Justice Stevens’ opinion enjoining the discharge of the Republicans. Quoting Perry v. Sindermann 14 the Court said, “[the government] may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.” 15 The Court then held, “it is manifest that continued employment of an assistant public defender cannot properly be conditioned on his allegiance to the political party in control of county government.” 16 I submit that it is equally apparent that continued employment of deputy sheriffs and dispatchers cannot properly be conditioned on their allegiance to a newly elected sheriff. I cannot follow a distinction between abstract belief and party allegiance on the one hand and support of a candidate on the other, for in my opinion, the first amendment protects both.
The majority’s interpretation of the use of the word “private” in Branti stands that opinion’s reasoning on its head. Branti did not even purport to narrow Elrod’s reach to embrace only those political beliefs kept in the closet. Indeed, it stands for the contrary proposition for the Court was responding to the defendant's argument that Elrod was limited “to situations in which government employees are coerced into pledging allegiance to a political party that they would not voluntarily support and does not apply to a simple requirement that an employee be sponsored by the party in power____” 100 S.Ct. at 1292 . In rejecting this argument, the Branti Court did not limit but extended Elrod to prohibit dismissal “of a public employee solely because of his private political beliefs.” Id. at 1294. To rule otherwise, the Court said, would “emasculate the principles set forth *1021 in Elrod.” Permitting dismissal for this reason “would perhaps eliminate the more blatant forms of coercion described in Elrod,” but “it would not eliminate the coercion of belief that necessarily flows from knowledge that one must have a sponsor in the dominant party in order to retain one’s job.” Id. at 1293-94 (footnote omitted).
Connick v. Myers 17 does not take one whit from Elrod or Branti. In fact, the Connick opinion cites both of those earlier opinions squarely for the protections they recognized. 18 It does not even deal with the issues presented by this case save as to McBee, the. dispatcher whose non-retention was sought to be justified on the basis of her betrayal of confidential information.
The issue in Connick was not patronage dismissals at all but whether, “the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs.” 19 Connick, the district attorney, had fired Myers, an assistant, for refusing to accept a transfer and for insubordination in distributing a questionnaire to other employees. The Court said that the distribution of the questionnaire was not “wholly without First Amendment protection,” but it found “much force” in the district attorney’s view that Myers’ communication did not relate to a matter of public concern. 20
Only one question in the assistant’s questionnaire touched upon a matter of public concern. The Court’s discussion of that question is of particular significance here:
Question 11 inquires if assistant district attorneys “ever feel pressured to work in political campaigns on behalf of office supported candidates.” We have recently noted.that official pressure upon employees to work for political candidates not of the worker’s own choice constitutes a coercion of belief in violation of fundamental constitutional rights. Branti v. Finkel, 445 U.S. 507, 515-516 , 100 S.Ct. 1287, 1293 , 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976).
461 U.S. at —, 103 S.Ct. at 1691, 75 L.Ed.2d at 721-22. The Court continued:
we believe it apparent that the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal.
Id. (emphasis added).
In reaching this conclusion, the Court discussed at length the evolution of its doctrine concerning what is a matter of public concern and the protection of the right of public employees to engage in full expression on such matters; it did not revisit the issue of discharges or refusals to rehire an employee for supporting a losing candidate. We do not need to guess at its holding, the Court stated it:
We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.
461 U.S. at —, 103 S.Ct. at 1690, 75 L.Ed.2d at 720. (Emphasis added.)
The Connick Court concluded that Myers’ discharge did not violate the first amendment because it was not in retalia *1022 tion for her political or other protected first amendment activities, and because the district attorney “reasonably believed [that her actions] would disrupt his office, undermine his authority, and destroy close working relationships.” 21
Connick traces its roots to Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968). 22 In Pickering , a school board dismissed a teacher who had published, in a local newspaper, a letter critical of the board’s handling of past proposals to raise new revenue for the school system and its subsequent allocation of funds between the system’s athletic and academic programs. The Court determined that it must balance the state’s interest in “promoting the efficiency of the public services it performs through its employees” against the interests of those employees, as citizens, in “commenting upon matters of public concern.” Subsequent cases, therefore, have applied Pickering and Connick to situations involving dismissals of an employee whose speech criticized his or her employer. 23
Both Pickering and Elrod involve, as the majority observes, “public employment and the First Amendment.” Both considered the circumstances in which a government employer might permissibly discharge a public employee for the employee’s expressive or associational activities. It is not surprising, therefore, that both cases examined similar considerations to determine when the employer’s interest outweighed that of the employee: the relationship between the employee and the employer and the effect the speech or association had on that relationship. The distinction the majority opinion fails to acknowledge is that Elrod and Branti , like this case, involved retaliation for political beliefs and associations — free expression that did not threaten the efficient conduct of public office unless the employees’ position required political loyalty. Pickering , like Connick and similar ]iice-Connick cases, involved speech that arguably threatened the integrity of employer-employee relations, and therefore each case required the interests to be balanced anew. 24
III.
The district court has found that Ybanez did not fail to rehire any of the deputy sheriffs or Spencer, the dispatcher, for any of the reasons held justifiable in Connick. Moreover, Ybanez did not react merely to the former employees’ “abstract political views.” Instead, like the politicians in both Elrod and Branti , he sought solely to put his “own people” into the sheriff’s office. The replaced persons were neither insubordinate nor incompetent, they merely failed to support Ybanez’s candidacy. The failure to rehire them squarely violates Elrod ; it does not entail the factors considered in Pickering .
Once the district court found that the sole reason for Ybanez’s failure to rehire the employees was his desire to staff the office with his “own people,” the only issue was whether political affiliation was “essential to the discharge of the employeefs’] governmental responsibilities.” Branti v. Finkel, 445 U.S. at 518 , 100 S.Ct. at 1295 , *1023 63 L.Ed.2d at 584 . 25 I agree with the majority that the size of a public office alone cannot determine the standard of first amendment protection. We said in Barrett v. Thomas 26 that in an office employing 550 deputies and 150 other workers, “the absence of political cohesion between sheriff and deputy can hardly be said to undermine an intimate working relationship.” Id. But that does not conclude the validity of the inverse proposition: that a small office necessarily demands political fealty to function effectively. Sheriff Ybanez never even asserted that it did. 27 The district court concluded that “there was no evidence whatever that the political beliefs or associations or voting history of any of the Plaintiffs in any way impaired their fairness or efficiency on the job. As to the dispatchers, the Defendant made no showing of any kind why political loyalty was necessary for proper performance of their duties.” 28
The majority draws attention to the fact that this case involves support of an individual Democrat as opposed to party affiliation. I do not understand its opinion to intimate that the first amendment is diluted when applied to public employees who happen to work in a one-party county. The Constitution applies alike to Illinois and to Texas, to Cook County and to Jim Hogg County. Its standards do not vary with the size of governmental units or the supposed perceptions of local voters. In many counties, there is no real two-party system in local election contests. The prevailing party is either Republican, as is typical in many parts of the mid-west, or Democratic, as it is in most of the “solid south.” The competing candidates represent factions that pay at least nominal fealty to the same party. Voting is determined by factional rather than party adherence and by the personalities of those who compete for the party nomination that is the guarantee of victory. Had the political activities of the plaintiffs constituted an ad hominem attack against Ybanez, the discussion contained in the penultimate paragraph of the majority opinion would have some relevance. 29 The connection would arise, however, not from the distinction between a one-versus a two-party county, but because the employees’ speech had destroyed the possibility of an effective employer-employee relationship.
Finally, the majority hangs part of its decision on the slender peg that some of the plaintiffs did not ask Ybanez to reemploy them. We do not exact meaningless gestures. Application would have been futile. The handwriting was on the wall for all to see: Ramirez had discharged all em *1024 ployees, the established practice was to give jobs to the new sheriffs people. Dispatcher Spencer and Deputy Contreras are the two who did not ask Ybanez for continued employment. Contreras testified, however, that Ybanez “approached me and he stated that he was sorry, but politics was politics, but I could wait for him, that at a later date some thing might come up, but not under him.” Even if application made a difference, the failure of some deputies to apply would surely not justify Ybanez’s failure to reemploy those who did affirmatively seek to be continued.
IV.
McBee had been both chief dispatcher and secretary to Ramirez. Ybanez did offer to continue her employment, but only as a dispatcher and at reduced pay. He proposed to give her secretarial duties to a new employee. Ybanez also told her of his plans not to retain a majority of the remaining staff. McBee protested that this was not fair and also complained of losing her secretarial job. The next week she spoke to the County Judge and also to one of the County Commissioners, complaining of Ybanez’s proposed course of action and “apparently” (according to the district court) seeking their advice or assistance in attempting to dissuade him. Ybanez learned of her actions and revoked his offer to McBee because she was “making trouble” and he anticipated that she would be a trouble-maker on the job.
The district court found that Ybanez’s desire to separate the secretarial from dispatcher functions was not politically motivated. It also found that her protests to county officers were an exercise of “freedom of speech.”
Only to McBee’s situation does the Pickering-Connick analysis apply. But nothing in the majority opinion tells us how “the balancing test” affects her claim. Its application requires her reinstatement.
The first step, under Connick, is to determine whether McBee’s speech involves matters of “public concern.” Connick expressly held that “the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal.” 461 U.S. at —, 103 S.Ct. at 1691, 75 L.Ed.2d 721 . Patronage dismissals of deputies and dispatchers are no less matters of public concern.
The Pickering — Connick balance next requires us to weigh the government’s interest in the effective and efficient fulfillment of its responsibilities to the public. Connick, 461 U.S. at —, 103 S.Ct. at 1692, 75 L.Ed.2d at 721-22. There is no evidence in the record to suggest that McBee’s consultation with county officials impeded her ability to perform a dispatcher’s duties. The district court found that Ybanez discharged McBee because he viewed her as a “troublemaker.” Connick, and Pickering as well, instruct us to consider the effect the employee’s speech might have on her relationship with her employer, and on the need for maintaining a harmonious working relationship. But neither permits a discharge solely because an employee might insist upon her rights. The question is whether the employee’s speech would disrupt the conduct of the public office or manifest insubordination to a superior. In deciding this, the Court has looked at the “manner, time, and place” in which the speech occurred. Connick, 461 U.S. at—, 103 S.Ct. at 1693, 75 L.Ed.2d at 724. McBee addressed her complaints to the appropriate officials, on her own time, and in a circumspect manner. 30 Her speech hardly approached the “mini-insurrection” Myers’ questionnaire was said to have caused Connick’s office. She did not challenge Ybanez’s authority in the office, 31 *1025 harass or attack him personally, 32 or seek to foment public antipathy for his administration. 33 Her speech deserves protection not only because it was free speech, but also because it was manifestly a petition for the redress of a grievance from the only governmental body able to afford relief.
IV.
A rule that protects only abstract beliefs is almost meaningless. Abstract beliefs need little protection. They threaten only those who cannot tolerate heresy. Words unspoken win no converts. Political beliefs cherished only in the mind win no elections. The right at stake in this case is the freedom to associate with the political party or the politician of one’s choice, as well as the freedom to hold the beliefs of one’s intellect. The first amendment does not protect only freedom of belief or the use of words. It safeguards conduct that is part of freedom of expression. The state cannot, without compelling reason, prohibit wearing armbands in school, 34 display of a peace symbol on a United States flag, 35 or library sit-ins 36 any more than it can prohibit holding the ideas that such conduct expresses. The first amendment protects the right to free expression as well as the right to petition for a redress of grievances.
In an ideal state, continuation in a government job should turn only on efficiency and ability. The Constitution does not mandate Erewhon. It permits public employment to be made dependent on other factors, including the whim of the employer. But the Constitution imposes some limits on the public employer: the public employee is entitled to due process, equal protection, and to freedom of expression. Save as restrained by proper statutory restrictions on their political activity, such as the Hatch Act, and the necessity for fidelity to their duties, public employees enjoy the right to speak their minds and to participate in the elective process. Job sacrifice may not be exacted as a reprisal for the exercise of free expression. Today’s decision makes possible just such retaliation. It undermines the first amendment bulwark of Elrod and Branti and threatens the firing of every public employee who does not support the incumbent if the incumbent wins, or who does support the incumbent if he loses. Loss of a job may not constitutionally be made the price of attending — or failing to attend — a pachanga.
For these reasons, I respectfully DISSENT.
. Elrod, v. Burns, 427 U.S. 347, 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976).
. Board of Education v. Barnette, 319 U.S. 624, 642 , 63 S.Ct. 1178, 1187 , 87 L.Ed. 1628 (1932).
. Elrod v. Burns, 427 U.S. at 356 , 96 S.Ct. at 2681 , 49 L.Ed.2d at 555 (1976).
. 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983).
. Local Rule 41.3.
. 456 U.S. 273 , 102 S.Ct. 1781 , 72 L.Ed.2d 66 (1982).
. I quote the district court’s findings.
. Ramirez’s staff had included eight deputies but two of these jobs were eliminated by the County Commission "for economy reasons."
. 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 .
. Elrod v. Burns, 427 U.S. at 360 , 96 S.Ct. at 2673 , 49 L.Ed.2d at 558 .
. Hollon v. Pierce, 257 Cal.App.2d 468 , 64 Cal.Rptr. 808 (3d Dist.1967) (sustaining discharge of a school bus driver who plied his religious belief that young children should be ritually sacrificed).
. Elrod v. Burns, 427 U.S. at 368 , 96 S.Ct. at 2687 , 49 L.Ed.2d at 562 .
. 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980).
. 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972).
. Id., 445 U.S. at 515 , 100 S.Ct. at 1293 , 63 L.Ed.2d at 582 .
. 445 U.S. at 519 , 100 S.Ct. at 1287 , 63 L.Ed.2d at 584 . Justice Stewart joined in this view. He dissented because he thought that lawyers in a public defender’s office are confidential employees.
. 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983).
. The Connick opinion first cites Branti for the general proposition that "[f]or at least 15 years, it has been settled that a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” 461 U.S. 138 , —, 103 S.Ct. 1684, 1687 , 75 L.Ed.2d 708 . The second citation is quoted in the text, post.
. Connick, 461 U.S. at —, 103 S.Ct. at 1686 , 75 L.Ed.2d at 715 .
. Id., 461 U.S. at —, 103 S.Ct. at 1688 , 75 L.Ed.2d at 717 .
. Id., 461 U.S. at —, 103 S.Ct. at 1694 , 75 L.Ed.2d at 724 .
. See id., 461 U.S. at —, 103 S.Ct. at 1686 , 75 L.Ed.2d at 715 .
. See, e.g., Egger v. Phillips, 710 F.2d 292 (7th Cir.) (en banc), cert. denied, — U.S. —, 104 S.Ct. 284 , 78 L.Ed.2d 262 (1983); Gonzalez v. Benavides, 712 F.2d 142 (5th Cir.1983); Rookard v. Health and Hospitals Corp., 710 F.2d 41 (2d Cir.1983); McGee v. So. Pemiscot School District R-V, 712 F.2d 339 (8th Cir.1983); Hughes v. Whitmer, 714 F.2d 1407 (8th Cir.1983); McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir.1983); Leonard v. City of Columbus, 705 F.2d 1299 (11th Cir.1983).
. Barrett v. Thomas, 649 F.2d 1193 (5th Cir. 1981), cert. denied, 456 U.S. 925 , 102 S.Ct. 1969 , 72 L.Ed.2d 440 (1982), illustrates well this distinction because it involved a challenge to personnel regulations prohibiting abusive, insulting, or indecent language directed to a supervisory officer, as well as alleged patronage demotion and transfer. The court cited Pickering in upholding the regulation as a permissible regulation of speech, but based its analysis of the patronage retaliation claims squarely on Elrod and Branti. 649 F.2d at 1200-02 .
. See, e.g., Tanner v. McCall, 625 F.2d 1183, 1189-90 (5th Cir.1980), cert. denied, 451 U.S. 907 , 101 S.Ct. 1975 , 68 L.Ed.2d 295 (1981); Barrett v. Thomas, 649 F.2d 1193, 1200-02 (5th Cir.1981), cert. denied, 456 U.S. 925 , 102 S.Ct. 1969 , 72 L.Ed.2d 440 (1982); Wren v. Jones, 635 F.2d 1277, 1286 (7th Cir.1980), cert. denied, 454 U.S. 832 , 102 S.Ct. 129 , 70 L.Ed.2d 110 (1981); Douglas v. Galloway, 568 F.Supp. 966 (S.D.W. Va.1983).
. 649 F.2d at 1201 .
. Had this been the issue, the burden was on the sheriff to prove it as an affirmative defense and a question of fact. Stegmaier v. Trammell, 597 F.2d 1027 , 1034 n. 4 (5th Cir.1979).
. When our court considered a case involving the discharge of the single Deputy Circuit Clerk of Cherokee County, Alabama, we did not even hint that Elrod should not apply with full force. Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir. 1979). Cherokee County's population, according to the Rand-McNally Atlas, was 18,760 on April 1, 1980. Stegmaier drew from Elrod a distinction between confidential employees and policy-makers. The deputies and dispatchers here involved appear to be no more confidential employees than they were policy-makers. Finally, to base the availability of an exception on the size of the county would allow the exception to engulf the rule. Almost sixty percent of the counties, and ninety-six percent of the municipalities and townships in the United States have a population of less than twenty-five thousand. Bureau of the Census, Dep’t. of Commerce, 1982-83 Statistical Abstract of the United States (103d ed.) at 295. Cf. Note, Nonpartisan Speech in the Police Department: The Aftermath of Pickering, 1 Hastings Con.L.Q. 1001, 1002 n. 7 (noting that the public work force constituted, in 1978, 16.5% of the nation’s employed population; restrictions on the speech of such a large percentage should be a matter for serious concern).
. See supra note 24.
. Indeed, as the Connick Court noted, "[e]mployee speech which transpires entirely on the employee’s own time, and in non-work areas of the office, bring different factors into the Pickering calculus, and might lead to a different result.” 103 S.Ct. at 1693 n. 13.
. See Gonzalez v. Benavides, 712 F.2d 142 (5th Cir.1983) (executive director of a community *1025 action agency publicly denied that county commissioners had any supervisory authority over his and his assistant’s job performance).
. See Hughes v. Whitmer, 714 F.2d 1407 (8th Cir.1983) (highway patrolman mounted campaign of harassment and intimidation against superior).
. See McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir.1983) (police department employee, as representative of labor organization, publicly criticized city’s refusal to give officers an annual raise); Leonard v. City of Columbus, 705 F.2d 1299 (11th Cir.1983) (executive director of black policemen’s league held press conference and staged demonstration to protest department’s treatment of black policemen).
. Tinker v. Des Moines School District, 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969).
. Spence v. Washington, 418 U.S. 405 , 94 S.Ct. 2727 , 41 L.Ed.2d 842 (1974).
. Brown v. Louisiana, 383 U.S. 131 , 86 S.Ct. 719 , 15 L.Ed.2d 637 (1966) (plurality opinion).