holding that the employee’s reference to “patient endangerment” in a press release did not make the speech a matter of public concern where the focus of the speech “is on the employees’ discontent with new work rules which might lead to a patient endangerment situation”
How later courts described this case
- holding that the employee’s reference to “patient endangerment” in a press release did not make the speech a matter of public concern where the focus of the speech “is on the employees’ discontent with new work rules which might lead to a patient endangerment situation”
- stating that press *1040 release issued by nurse did not touch upon public concern because the focus was not on patient endangerment so much as it was employee dissatisfaction with work rules
- finding that speech is not protected “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”
- finding the plaintiff’s speech did not touch on matters of public concern as it was nothing more than the “quintessential employee beef”
Written by the judges who cited it.
The opinion
KEITH, Circuit Judge,
dissenting.
While the majority opinion correctly cites the applicable law in the instant case, I disagree with the conclusion that the speech contained in Rahn’s press release was not a matter of public concern. The majority’s painstaking consideration of each element of Rahn’s press release disregards the impact of the press release as a whole and the context in which it was written. Because the press release addressed a matter of public concern, it is entitled to First Amendment protection. I, therefore, respectfully dissent.
Whether speech addresses a matter of public concern is determined by examining the “intent, form and context of a given statement as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48 , 103 S.Ct. 1684, 1690 , 75 L.Ed.2d 708 (1983). Speech addressing matters of public concern encompasses “issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” McKinley v. Eloy, 705 F.2d 1110, 1114 (9th Cir.1982) (quoting Thornhill v. Alabama, 310 U.S. 88, 102 , 60 S.Ct. 736, 744 , 84 L.Ed. 1093 (1940)).
Here, although the press release noted certain employee grievances, a substantial portion addressed matters of public concern. For example, Rahn’s speech attacked the management of Drake Hospital, the local hospital which provided services to the indigent. The attack discussed a recent tax levy that provided funds for Drake Hospital. After the levy was passed, Drake Center corporation was formed to manage Drake Hospital. Rahn’s speech directly addressed Drake Center’s and Gilreath’s use of tax levy dollars to manage the hospital.
As the majority notes, the fact that speech concerns government expenditures and efficiency does not automatically qualify speech as addressing a matter of public concern. See Barnes v. McDowell, 848 F.2d 725, 733 (6th Cir.1988), cert. denied, 488 U.S. 1007 , 109 S.Ct. 789 , 102 L.Ed.2d 780 (1989). In the instant ease, however, the press release discussed the management of Drake Hospital, the formation of the Drake Corporation, and the conversion of 75% of the hospital beds to private status. All of these topics received substantial media attention in the summer of 1989. They certainly were extremely important to the locality, and are thus worthy of First Amendment protection.
While media coverage itself does not convert a private matter into a matter of public concern, it provides evidence that the matter is of import to the locality. Moreover, the speech also addressed the potential endangerment of patients which is clearly a matter of public concern. See Frazier v. King, 873 F.2d 820, 825-26 (5th Cir.) (agreeing “the quality of health care given to any group of people, including inmates, is a matter of public concern”), cert. denied, Davoli v. Frazier, 493 U.S. 977 , 110 S.Ct. 502 , 107 L.Ed.2d 504 (1989); see Smith v. Cleburne County Hospital, 1 870 F.2d 1375, 1383 (8th Cir.1989), cert. denied, 493 U.S. 847 , 110 S.Ct. 142 , 107 L.Ed.2d 100 (1989); see also Casey v. City of Cabool, Mo., 12 F.3d 799, 802-03 (8th Cir.1993) (holding criticism of public officials during a discussion of city policy was a matter of public concern).
Clearly, health care is important to the American public. Perhaps the most important political debate of the 1990’s is the interplay between health care and the public’s tax dollars. This debate has raged both nationally and locally, and definitely involves mat *416 ters of public concern. 2 Notably, the Third Circuit discussed health care and found that “the quality, availability and cost of health care are among the most important and debated issues of our time.” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 917-19 (3rd Cir.1990).
The debate over the provision of and payment for health care squarely falls within the heart of the First Amendment. Its protection should extend to the debate on health care reform, even where it occurs at a local level, as in the instant case.
Viewing the intent, form, and context of Rahn’s speech as revealed by the whole record, I would conclude the speech was a matter of public concern, and therefore, entitled to protection.
. Notably in Cleburne, the Eighth Circuit determined a doctor’s initial criticism of a local hospital was a matter of public concern. Cleburne, 870 F.2d at 1381 . The court further found, however, that to the extent the speech was personal and spiteful attacks against individuals, it was disruptive and unprotected, and therefore, provided an independent basis for recommending the suspension of the doctor’s privileges. Id. at 1383-84 .
. See also Symposium, The Law and Policy of Health Care Rationing: Models and Accountability, 140 U.Pa.L.Rev. 1505 (May 1992); Susan Elizabeth Powley, Caring for the Nation — Current Issues in Health Care Reform, 45 Vand.L.Rev. 869 (May 1992); Kenneth R. Wing, Symposium, American Health Policy in the 1980’s: The Legal Implications of Health Care Cost Containment, 36 Case W.Res.L.Rev. 608 (1986); Charles D. Weller, Symposium, "Free Choice" as a Restraint of Trade in American Health Care Delivery and Insurance, 69 Iowa L.Rev. 1351 (July 1984); David Lauter, Clinton Challenged on Cost of Health Care to Employers, L.A. Times, April 8, 1994, at A17; Gerald F. Seib, Clinton's Choice: Left or Right in Health Care?, Wall Street Journal, Nov. 24, 1993, at A18; Sara Fritz, U.S. Cautiously Awaits Clinton Health Program, L.A. Times, Sept. 19, 1993, at Al; Joseph F. Sullivan, Health Care Program Endorsed, New York Times, Nov. 6, 1991, at B6 col. 1.