While employed as a media aide for the Miami-Dade County Board of County Commissioners, John Labriola wrote an opinion piece for an online newspaper. The piece criticized Florida's Equality Act, an as-yet-unenacted bill that would prohibit discrimination based on sex, sexual orientation, and gender identity. In it, Labriola warned small-business owners "who resist surrendering their consciences to the new 'tranny tyranny'" that, if the bill was passed, "[i]t's going to be a choice of either baking that sodomy cake and hiring the scary-looking, child-molesting tranny with a beard or being drowned in legal bills and driven out of business." He added: "[n]o conservative small town in the South or Midwest will be safe from that weird study in perversity known as Drag Queen Story Hour, in which public libraries host a heavily made-up, flamboyant, homosexual pedophile in a dress who rolls around on the floor with little children as he reads them stories about gender fluidity and LGBT unicorns."
Labriola's hateful rhetoric provoked a response. In an email to staff members of the Board of County Commissioners, a County citizen took issue with the opinion piece and questioned whether Labriola's views represented the County's. A County employee forwarded that email to the Miami Herald, after which the paper published an article describing the opinion piece as a "slur-laden tirade against transgender people." At that point, the County received a barrage of phone calls from concerned residents.
Labriola's supervisor suspended him from work for three days without pay and ordered him to schedule "training regarding the County's anti-discrimination policies" within seven days and to complete that training within 30 days. Thirty days came and went, and, despite three written reminders, Labriola never scheduled the training. For his failure to do so, he was terminated.
Unbowed, Labriola took the matter to federal court, contending that by suspending him and ordering him to attend training on account of the opinion piece, the County retaliated against him for engaging in activity protected by the Free Speech, Free Press, and Free Exercise Clauses. He also asserted that by terminating him for his failure to attend the training, the County retaliated against him for refusing to undergo compelled speech—the training, Labriola surmised, would have required him to say things with which he disagreed. Labriola also contended that his termination violated his rights under the Free Exercise Clause, as "[h]e refused to undergo the extra training out of his religious obligation to not (as he sees it) speak falsely about human sexuality."
The trial court granted summary judgment to the County on all counts. The Eleventh Circuit Court of Appeals affirmed. The case poses the question of how much First Amendment protection is a public employee entitled to. It's a tricky question. On the one hand, because the government is the employer, the affected employee is entitled to First Amendment protection (a private employee is not). On the other hand, an employer has the right to maintain discipline in the workplace. So how are courts to resolve this conundrum?
As in many cases where rights are at odds, the Supreme Court has developed a balancing test. In this case, the applicable test is the "Pickerington test," from the case of the same name. Under that test, to prevail on a First Amendment claim, an employee must show that: (1) the speech involved a matter of public concern; (2) the employee's free speech interests outweighed the employer's interest in effective and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse employment action.
Here, Labriola couldn't satisfy the test, because the court decided Dade County's interests in the effective and efficient fulfillment of its responsibilities outweighed Labriola's free speech interests. As the court noted, "[t]here is evidence that the opinion piece 'impair[ed] . . . harmony among co-workers.' After one staff member read the opinion piece, she told Labriola's supervisor that she found it '[v]ery upsetting' because 'she was offended by the words he used.'"
The court also found evidence that there is ample evidence that the opinion piece "interfere[d] with the regular operation of the enterprise." The piece "brought a lot more work" to the office, in part because, following its publication, the office received "a lot of phone calls." According to Labriola's supervisor, no other event had ever "caused such a large number of phone calls." Confirming this description, the Chairman's chief of staff testified that the calls "became such a problem that it really prevented us from doing our day-to-day operations during those days."
Labriola presented no evidence to counter Dade County's evidence. This led the appellate court to uphold the district court's finding that there was no material fact in issue. That sealed the deal in Dade County's favor.
I don't know if Labriola will pursue an appeal in the United States Supreme Court. On the one hand, this is a straightforward decision based on undisputed facts. That's not the type of case SCOTUS normally takes on. But given the Trump Administration's open hostility to DEI efforts generally, and transgender rights particularly, SCOTUS may opt to hear it.
