The sole question, therefore, is whether or not defendants Rager and Johnson can appropriately say that they as “reasonable persons” did not know of a public employee's First Amendment rights and that an employee could not be disciplined for exercising such rights. The law on which the Sixth Circuit relied in determining that plaintiff's First Amendment rights were violated has been settled for over twenty years.... Both Mr. Rager and Mr. Johnson were supervisory employees of a high order and both must be deemed to have been aware of the restrictions imposed upon employers by [Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) ] and [Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ] in terms of First Amendment rights of employees. The Court finds that the assertion of qualified immunity is meritless.
Under the current somewhat imprecise standard, speech of a public employee is protected if (1) the speech addresses a matter of public concern, and (2) the employer has no overriding state interest in efficient public service that would be undermined by the speech.
In the instant case, plaintiff's speech is on a matter of public concern.... The charges against the plaintiff refer to an affirmative action lawsuit brought against the City of Cincinnati and the consent decree stemming from that suit as a reason for the city's affirmative action policy.... Just as an opinion concerning the general policy of affirmative action would be a matter of public concern, so too is speech concerning methods of implementing affirmative action. Under the facts of this case, speech about a politically charged issue like affirmative action—whether pro or con—should be considered a matter of public concern.
As Thomas Emerson, the first amendment scholar, noted, free speech is most valuable when it relates to the exigencies of the time. T. Emerson, The System of Freedom of Expression (1970). Issues of gender-based discrimination and governmental decisions made in “smoke-filled” rooms are topical concerns in our society. Speech regarding these issues functions as a “check” upon the abuses by government. Moreover, it is in line with the greatest of American traditions, practiced by distinguished libertarians from Adams to Whitman, to inform the *1160 public of inequities. Thus Donahue's claims of gender-based discrimination and Freedom of Information Act violations fall within the first amendment's protective ambit: both were matters of public concern.
In order to justify a restriction on speech of public concern by a public employee, plaintiff's speech must impair discipline by superiors, have a detrimental impact on close working relationships, undermine a legitimate goal or mission of the employer, impede the performance of the speaker's duties, or impair harmony among co-workers. The state bears the burden of showing a legitimate justification for discipline.... The City offered no evidence of any adverse effect upon plaintiff's relationship with his co-workers, nor of any adverse impact upon the City's affirmative action program except for the anger the speech in question raised in Green and Foster. There was no evidence that the City's ability to provide firefighting services was undermined, nor evidence that plaintiff could not command the respect of his minority or non-minority subordinates.... Since there is no evidence of any City interest which would permit the limitation of the speech in question here, we hold that plaintiff's speech is protected under the First Amendment.
position as a fireman ... may be a factor in determining whether his speech warrants less protection than it otherwise would.... [T]he government has a legitimate interest in the smooth functioning of a public facility and, especially, in preserving the ‘esprit de corps' that is essential to a fire department's joint endeavor of saving lives....
[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he was doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in light of pre-existing law the unlawfulness must be apparent.
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