The First Amendment of the Constitution confers vital rights to free speech and association. However, government employees sometimes find that exercising these rights puts their jobs at risk. The U.S. Supreme Court has held that a government employee has essentially the same free speech rights as anyone else when they are speaking as a citizen on matters of public concern, as long as their speech does not impede the performance of their duties or the operations of their employer. The Supreme Court also has held that public employees who do not occupy policy-making positions must not lose their jobs due to their political beliefs and associations.
Last week, a federal judge ruled that Governor of Alaska Mike Dunleavy violated First Amendment protections in firing Elizabeth Bakalar, a former assistant attorney general for the state. When Dunleavy took office in 2018, he required many state employees to officially submit resignations while offering reasons for why they should be retained. Only two assistant attorney generals, one of whom was Bakalar, were not ultimately rehired.
Bakalar aggressively opposed former President Donald Trump in posts on her personal blog, where she referred to him as “a manifestly delusional, likely senile, sociopathic, treasonous, semi-literate, lecherous oligarch,” among other unflattering descriptions. The judge found a lack of evidence that the blog posts affected her ability to perform her duties for the state. Moreover, the judge was not persuaded by testimony from Tuckerman Babcock, who serves as the chief of staff for Dunleavy. Babcock claimed that Bakalar was fired based on the tone of her resignation letter and that he was not closely familiar with her blog. The judge was nevertheless persuaded that Bakalar was fired for her political opinions. He noted that the Governor and the chief of staff had no reasonable basis for believing that it was legally appropriate to make Bakalar’s job contingent on her political loyalties.
The judge thus granted summary judgment to the former assistant attorney general. This means that Bakalar has prevailed in her claim without proceeding to a trial. (Summary judgment is appropriate when there is no genuine dispute about any material fact in a case, and one party is entitled to judgment as a matter of law.) The judge has asked the parties to provide further information about issues beyond liability, such as damages.
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