Amicus Brief: Hedgepeth v. Britton

Jeanne Hedgepeth was a public school teacher in Illinois for 20 years before she was terminated for Facebook posts she made on her private account while on summer vacation in Florida. Her account didn't identify her as a teacher, and she didn't accept friend requests from current students. Her posts were in response to the protests following the death of George Floyd. She criticized protestors and cited thinkers like Thomas Sowell and Larry Elder on questions of race relations. Some of her Facebook friends were offended, as well as others in the school district, and complaints about her speech were sent to the school board. School administrators determined her posts were "disrespectful, demeaning of other viewpoints, and racist" and fired her. 

Public employees have First Amendment rights. Those rights are somewhat curtailed by the realities of working for the government, but they certainly exist. When a public employee is off work and commenting on matters of public concern, like political Facebook posts, those rights are at their strongest. In order to terminate an employee for her speech, the government needs to show that the speech significantly harms the workplace and her ability to do the job. In Ms. Hedgepeth's case, however, she was terminated because some in the community and on the school board disagreed with her views. The Seventh Circuit called that disagreement "disruption" and upheld her termination.

Now on petition for Supreme Court review, the Manhattan Institute, joined by the Southeastern Legal Foundation and the Defense of Freedom Institute, has filed an amicus brief in support of Ms. Hedgepeth's case. We argue that Hedgepeth's termination was unconstitutional because it was a form of viewpoint discrimination through a "heckler's veto." Quite simply, she was fired because some people disagreed with her and caused a "disruption." If she had different beliefs, she may not have been fired. Yet even that isn't clear. On some divisive issues, which certainly includes George Floyd's death and the resulting protests, any opinion is likely to make some people mad. In these politically divisive times, public employees still have the right to make private, off-work comments on important political issues. The Court should take the case to clarify that "disruptions" caused by some who disagree with a public-employee's opinions are not a sufficient reason to curtail First Amendment rights.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Noam Josse

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