Randall Brickey v. Robb Hall

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1910

RANDALL E. BRICKEY,

Plaintiff - Appellee,

v.

ROBB HALL,

Defendant – Appellant,

and

DICKIE DYE; T. MICHAEL TAYLOR; ERIK C. PUCKETT; NEIL
JOHNSON; C. TODD YOUNG; TOM HOLLY; VINCENT MAIDEN,

Defendants.

Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen E. Conrad, Chief
District Judge. (1:13−cv−00073−GEC−PMS)

Argued: December 10, 2015 Decided: July 8, 2016

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Reversed and remanded by published opinion. Judge Diaz wrote
the opinion, in which Judge Duncan and Judge Keenan joined.

ARGUED: Jeremy E. Carroll, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Edward Kyle McNew,
MICHIEHAMLETT PLLC, Charlottesville, Virginia, for Appellee. ON
BRIEF: Andrea Kay Hopkins, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Hilary K. Johnson, Abingdon,
Virginia, for Appellee.

2
DIAZ, Circuit Judge:

Police officer Randall Brickey was fired for comments he

made as a candidate for town council that were critical of his

employer, the Saltville Police Department, and its Police Chief,

Rob Hall. Brickey filed suit under 42 U.S.C. § 1983 for

retaliatory discharge in violation of the First Amendment. The

district court denied Hall qualified immunity, and this

interlocutory appeal followed. Because it was debatable at the

time of Brickey’s dismissal that his speech interests as a

citizen outweighed Hall’s interests as a public employer, we

conclude that Hall is entitled to qualified immunity. We

therefore reverse.

I.

A.

Brickey was an officer with the Saltville Police Department

from December 1, 2006, to May 21, 2012, the day his employment

was terminated. Hall became Police Chief in July 2011, taking

over a department struggling with well-publicized problems of

financial mismanagement, officer misconduct, and a general lack

of professionalism. In an effort to improve the department’s

operations and public image, Hall instituted several policy

changes, including increased foot patrols, a stricter dress

code, and new payroll procedures.

3
 In early 2012, Brickey decided to run for Saltville Town

Council. He discussed the plan with Hall, who indicated that

the campaign would not cause employment problems so long as

Brickey did not campaign in uniform or disparage the department

in contravention of departmental policy.

During the campaign, two local newspapers posed questions

to the candidates, inviting them to submit responses for

publication. One paper provided this prompt: “Motivation for

seeking office/why should the voters choose you?” J.A. 337.

After identifying himself as a member of the Saltville Police

Department with twenty-three years of experience as a police

officer, Brickey responded in relevant part as follows:

I teach the D.A.R.E. [i.e., Drug Abuse Resistance
Education] Program at Saltville Elementary
School. . . . I went in to talk to Chief (Rob) Hall
about ordering the supplies for the D.A.R.E.
graduation. I was told there was no money to place
the order. After checking with the accounts payable
clerk to see where the $500 in the police department
budget had been spent, I was shown several invoices
that were charged to the D.A.R.E. account. The items
on the invoices had nothing to do with the D.A.R.E.
program. I also found, from looking at a copy of the
budget that I obtained from the town, that the town
receives $225,000 in highway maintenance funds from
the state. Only $3,000 is approved in the budget for
paving. Seeing this, along with the other misuse of
taxpayers’ money, shows me that we have a very poor
management at the council level and there needs to be
a change.

Id.

4
 Next, in response to a question about the town’s “greatest

needs,” Brickey noted road paving, improved management of the

town pool, and the following changes to the Saltville Police

Department: “The town police department needs to be more

professional. Officers need to do more foot patrols during the

day shift and become more familiar with business owners. The

police department needs to be more [aggressive] on

investigations and focus more on drug trafficking.” Id.

Finally, Brickey responded to a question as to how to meet

those needs. He first noted that he had “been told by some

business owners in town during [his] campaign for town council

that they would like to see more foot patrols from the police

department, and would like to see the chief during daytime

hours.” Id. He went on to propose the addition of a full-time

investigator, stating that the town had a serious drug problem

and that he knew of “cases that need to be investigated by the

police department.” Id. Brickey’s statements were printed in

late April 2012.

About a week later, Hall informed Brickey that he believed

Brickey’s statements violated departmental policy. The alleged

violations of the Police Department Policy Manual included (1) a

failure to “display respect for [his] superior officers,

subordinates, and associates”; (2) “speak[ing] rumors

detrimental to the department or another employee”; (3) “us[ing]

5
or attempt[ing] to use [his] official position, badge or

credentials for personal or financial gain or advantage”;

(4) “communicat[ing] . . . information concerning operations,

activities or matters of police business, the release of

which . . . may have an adverse impact on the department image,

operations, or administration”; and (5) “criticiz[ing] or

ridicul[ing] the Department, its policies, or other employees by

speech . . . [that] undermines the effectiveness of the

Department, interferes with the maintenance of discipline, or is

made with reckless disregard for truth or falsity.” J.A. 352-

55, 357-70.

Hall hired Gary Reynolds—an out-of-state, former police

chief—to investigate the allegations and to determine whether

Brickey in fact violated departmental policies. Reynolds

interviewed Hall, Brickey, Assistant Chief Erik Puckett, the

Saltville town auditor, and the other five officers in the

police department. In speaking with Reynolds, Brickey withdrew

or attempted to clarify some of his statements. Asked about his

comments on the professionalism of the department, Brickey said,

“It’s not that I meant they are unprofessional, we just need to

be on patrol more.” J.A. 373. Regarding the D.A.R.E. comments,

Brickey admitted that the $500 was in fact accounted for in a

different line item of the budget. J.A. 384. He also conceded

that he “should have said mismanagement of funds versus misuse

6
of funds.” J.A. 387. Brickey insisted that his “statements

regarding the DARE account were not about Chief Hall, they were

about the [town] council members.” J.A. 383.

According to Reynolds’s investigation, Brickey’s statements

caused concern within the Saltville government and police

department. A town auditor interpreted Brickey’s statements as

alleging that Chief Hall was misusing funds. J.A. 381. This

“upset” the auditor, who, after looking into the matter, “found

no misuse of taxpayer money by Chief Hall.” Id. Some police

officers believed that the comments reflected poorly on the

department, though at least two officers told Reynolds that they

had not read Brickey’s comments. J.A. 381-83, 386.

In Reynolds’s final estimation, Brickey’s statements to the

newspapers violated departmental policies. J.A. 387. According

to Reynolds, Brickey’s statements regarding the “misuse” of

D.A.R.E. funds “clearly ‘bad mouthed’ the Police Department and

especially the Police Chief, and thus were harmful to the public

trust of Chief Hall as well as his integrity.” Id. Moreover,

Reynolds faulted Brickey for failing to investigate properly or

verify his allegations that police funds were being misused.

J.A. 388. Specifically, Reynolds found that Brickey overlooked

the fact that the D.A.R.E. budget line item also included funds

for “Community Relations,” and that the invoices Brickey

observed were for legitimate community-relations expenses. Id.

7
 After notifying Brickey of the results of the

investigation, Hall held a meeting with Brickey, Reynolds, and

Puckett in which Brickey was given an opportunity to respond to

the allegations and the findings of the report. On May 21,

2012, Hall terminated Brickey’s employment. Brickey pursued the

department’s grievance procedures to no avail.

B.

Brickey filed suit under § 1983, naming as defendants Hall

and a number of other individuals who played a role in his

dismissal. In addition to his First Amendment retaliatory-

discharge claim, Brickey also asserted procedural and

substantive due-process claims. The due-process claims were

dismissed on a 12(b)(6) motion, as was a request for punitive

damages. The retaliatory-discharge claim survived, and the

defendants later moved for summary judgment, attacking the claim

on the merits and also asserting qualified immunity. The

district court granted the motion in part and denied it in part.

Brickey v. Hall, No. 1:13-CV-00073, 2014 WL 4351602, at *9 (W.D.

Va. Sept. 2, 2014). Summary judgment was granted as to all

defendants except Chief Hall—none of the other officials, the

court held, had “caused” Brickey’s injury, as Hall was the lone

decisionmaker. Id. at *8.

As to Hall, the district court denied qualified immunity.

Id. The district court first held that, taking the record in

8
the light most favorable to Brickey, Hall violated Brickey’s

First Amendment rights. Id. at *4–7. Having found a violation,

the district court determined that Brickey’s right not to be

fired for his speech was clearly established at the time of his

termination. Id. at *7–8. Relying on Citizens United v. FEC,

558 U.S. 310 (2010), the court stated that political speech was

clearly entitled to strong protection. Id. at *8. And relying

on Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), the court

stated that public employees’ speech regarding governmental

misconduct warrants protection. Id.

This interlocutory appeal followed. 1

II.

We review de novo the denial of qualified immunity. Altman

v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003).

Qualified immunity shields government officials from

personal liability when “their conduct does not violate clearly

established . . . rights of which a reasonable person would have

known.” Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014)

1 Although “interlocutory appeals are generally disallowed,
‘a district court’s denial of a claim of qualified immunity, to
the extent that it turns on an issue of law, is [immediately
appealable] notwithstanding the absence of a final judgment,’
under the collateral-order doctrine.” Iko v. Shreve, 535 F.3d
225, 234 (4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S.
511, 530 (1982)).

9
(quoting Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam)).

That is, qualified immunity protects government officials when

they act in legal “gray areas.” Id. (quoting Occupy Columbia v.

Haley, 738 F.3d 107, 118 (4th Cir. 2013)). An official is

entitled to qualified immunity unless “(1) the allegations

underlying the claim, if true, substantiate [a] violation of a

federal statutory or constitutional right; and (2) this

violation was of a clearly established right of which a

reasonable person would have known.” Id. at 308 (quoting

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306

(4th Cir. 2006)). While a case directly on point is not

required for a court to conclude that the law was clearly

established, “existing precedent must have placed the . . .

constitutional question beyond debate.” Id. (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011)). The burden of proof

rests with the official asserting the defense. Durham, 737 F.3d

at 299.

Brickey alleges retaliatory discharge in violation of the

First Amendment. On appeal, Hall does not challenge the

district court’s holding that Brickey has properly alleged a

constitutional violation—the first qualified-immunity prong.

Instead, Hall contends that the right Brickey asserts was not

clearly established in 2012 when Brickey was terminated. Our

review, therefore, is confined to the question of what law was

10
clearly established—we do not reach the merits of Brickey’s

constitutional claim.

A First Amendment retaliation claim poses three questions:

(1) whether the public employee was speaking as a
citizen upon a matter of public concern or as an
employee about a matter of personal interest;
(2) whether the employee’s interest in speaking upon
the matter of public concern outweighed the
government’s interest in providing effective and
efficient services to the public; and (3) whether the
employee’s speech was a substantial factor in the
employee’s termination decision.

McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998). The third

question is not in dispute; Hall concedes that he terminated

Brickey because of his speech. But Hall contends that the law

was not clearly established on the first two questions.

Because we hold that the law was not clearly established as

to the second question—the balancing of the employee’s and

employer’s interests—Hall is entitled to qualified immunity.

Consequently, we need not reach the question of whether it was

clearly established that Brickey spoke as a citizen on a matter

of public concern.

A.

Under the Supreme Court’s decision in Pickering v. Board of

Education, a court’s charge in a First Amendment retaliation

case is “to arrive at a balance between the interests of the

[employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in

11
promoting the efficiency of the public services it performs

through its employees.” 391 U.S. 563, 568 (1968). The public’s

interest in hearing the employee’s speech also weighs in the

balance: “A stronger showing of public interest in the speech

requires a concomitantly stronger showing of government–employer

interest to overcome it.” McVey, 157 F.3d at 279 (Murnaghan,

J., concurring). 2

“The Pickering balance requires full consideration of the

government’s interest in the effective and efficient fulfillment

of its responsibilities to the public.” Connick v. Myers, 461

U.S. 138, 150 (1983). Prior to Brickey’s termination, the test

for striking the appropriate balance was clear:

“[W]e must take into account the context of the
employee’s speech” and “the extent to which it
disrupts the operation and mission” of the
institution. Factors relevant to this inquiry include
whether a public employee’s speech (1) impaired the
maintenance of discipline by supervisors; (2) impaired
harmony among coworkers; (3) damaged close personal
relationships; (4) impeded the performance of the
public employee’s duties; (5) interfered with the
operation of the institution; (6) undermined the
mission of the institution; (7) was communicated to
the public or to coworkers in private; (8) conflicted
with the responsibilities of the employee within the
institution; and (9) abused the authority and public
accountability that the employee’s role entailed.

2 At this point in his concurrence, Judge Murnaghan speaks
for a majority of the McVey panel. See 157 F.3d at 282 (Michael,
J., concurring in the lead opinion “except to the extent it is
qualified by Judge Murnaghan’s separate opinion”).

12
Ridpath, 447 F.3d at 317 (citation omitted) (quoting McVey, 157

F.3d at 278). The employer need not prove actual disruption,

“but only that an adverse effect was ‘reasonably to be

apprehended.’” Maciarello v. Sumner, 973 F.2d 295, 300 (4th

Cir. 1992) (quoting Jurgensen v. Fairfax Cty., 745 F.2d 868, 879

(4th Cir. 1984)).

It was clearly established in 2012 that police officials

are entitled to impose more restrictions on speech than other

public employers because a police force is “‘paramilitary’—

discipline is demanded, and freedom must be correspondingly

denied.” Id. (quoting Jurgensen, 745 F.2d at 880) (granting

qualified immunity to a police official who terminated two

officers for conducting an unauthorized investigation into

alleged evidence tampering in the police force). Because of

this heightened need for discipline, police officials have

“greater latitude . . . in dealing with dissension in their

ranks.” Id.

The key comments in this case involve the allegedly missing

D.A.R.E. funds. 3 As an initial matter, despite Brickey’s claim

3
We agree with the district court that it was clearly
established that Brickey’s other comments were entitled to First
Amendment protection. Statements that the department “needs to
be more professional,” “needs to be more [aggressive] on
investigations,” or ought to hire an investigator do not raise a
reasonable apprehension of disruption. J.A. 337. Not only do
these statements offer modest criticism of the department and
(Continued)
13
that he did not intend to impugn his chief, Hall could

reasonably have read the comments—as some others in Saltville

did—to accuse him of incompetence or even malfeasance. A town

auditor, for example, read the comments to allege misuse on the

Chief’s part, and (according to declarations given by Hall,

Assistant Chief Puckett, and the town manager) some members of

the police force and the public expressed concerns of police

misconduct in the wake of the articles. See J.A. 93 (Hall:

“Some residents also construed Brickey’s comments as accusing me

and the department of corruption and misusing funds.”); J.A. 312

(Puckett: “I was asked questions about the articles from members

of the public who expressed concern that officers were engaging

in misconduct.”); J.A. 316 (Town Manager: “Officers expressed

their belief that Brickey had accused them of improper

behavior . . . .”); id. (“Many people who commented about the

articles expressed concern that someone was stealing money from

the Town.”).

The clearly established principles outlined above did not

put the outcome of the Pickering balancing in this case “beyond

debate.” The context and the extent of disruption of the

D.A.R.E. comments weighed on both sides of the scale. First,

its chief, but they also touch on weaknesses of the department
that were already well known in Saltville.

14
Brickey spoke as a political candidate in a public forum. In

general terms, speaking as a political candidate weighs in favor

of speech. At the same time, however, the public nature of

Brickey’s comments increased their capacity for disruption.

Second, Brickey’s speech criticized a superior officer. As our

cases reflect, discipline and respect for superior officers are

critical in a police force. Because speech accusing a superior

officer of incompetence or malfeasance goes to the heart of the

superior’s authority, Hall could reasonably have believed that

Brickey’s comments would undermine his authority in the eyes of

the public and within the police department. See J.A. 316 (Town

Manager stating that “[b]ased on my observations of officers in

the Police Department, Brickey’s comments hampered morale and

discipline in the department”). Such a concern is amplified in

the close working conditions of a small police force, where

“mutual confidence and co-operation are essential.” Cooper v.

Johnson, 590 F.2d 559, 562 (4th Cir. 1979). Furthermore, Hall

was working to restore credibility to the department. He

reasonably could have believed that Brickey’s comments would set

back his efforts and increase public distrust in him and the

department as a whole. Finally, Reynolds conducted an

independent investigation of Brickey’s statements and concluded

that they “were harmful to the public trust of Chief Hall as

15
well as his integrity.” J.A. 387. Such a finding supports the

conclusion that Hall reasonably apprehended disruption.

In sum, the parties have not directed us to any case that

would have clearly warned Hall that terminating Brickey for his

comments about the D.A.R.E. funds would violate his First

Amendment rights. On the contrary, our case law had stressed

the broad discretion granted police officials to limit speech

when discipline is at stake. As a result, we cannot say that it

was beyond debate that Brickey’s interests outweighed Hall’s.

B.

Brickey’s counter-arguments are unpersuasive. He relies

principally on Citizens United v. FEC, 558 U.S. 310 (2010),

which held that the government may not prohibit corporate

expenditures to support or criticize political candidates. In

Brickey’s view, “[n]othing could have been more clearly

established in May 2012 than the sanctity of political speech.”

Appellee’s Br. at 28. However, such a broadly framed right

could not have answered the question facing Hall: when does a

police chief’s need to maintain discipline and harmony permit

him to infringe on an officer’s right to make public statements

as a political candidate insinuating wrongdoing by a superior

officer? See al-Kidd, 563 U.S. at 742 (stating that courts may

not “define clearly established law at a high level of

generality”).

16
 While a case directly on point is not required to clearly

establish the answer to this question, Citizens United addresses

only one side of the Pickering scale, and it does so on very

different facts. Cases more closely on point have not treated

political speech as inviolate in the public-employment context.

See, e.g., Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013)

(holding that it was clearly established in 2009 that “a

reasonable sheriff could have believed he had the right to

choose not to reappoint his sworn deputies for political

reasons, including speech indicating the deputies’ support for

the Sheriff’s political opponent”); see also Waters v.

Churchill, 511 U.S. 661, 672 (1994) (plurality opinion) (“Even

something as close to the core of the First Amendment as

participation in political campaigns may be prohibited to

government employees.”).

Brickey next contends that Hall has nothing on his side of

the Pickering scale but “rank speculation,” and he likens the

anticipated disruption here to that in Smith v. Gilchrist and

Durham v. Jones. Appellee’s Br. at 31-32. 4 We have already

explained that Hall had a “reasonable apprehension” of

4Both Smith and Durham were published after May 21, 2012
(the date of Brickey’s termination), but they held that certain
rights were clearly established prior to that date. While the
cases could not have assisted Hall, we are nevertheless bound by
their holdings.

17
disruption, 5 and we now explain why Smith and Durham are

distinguishable.

In Smith, an assistant district attorney (“ADA”) running

for public office gave a televised interview in which he

criticized a local defensive-driving program. 749 F.3d at 305.

Because completion of the program allowed ticketed drivers to

receive a “prayer for judgment continued,” the district

attorney’s office (the “government”) benefitted from the program

by a substantially reduced caseload. Id. When the district

attorney terminated the ADA’s employment soon after the

interview, the ADA brought a First Amendment retaliation suit.

Id. at 306.

In the district court, the government conceded that the ADA

“had forecasted evidence sufficient to establish that his

interest in speaking outweighed the government’s.” Id. at 309.

Nevertheless, the government argued that the outcome of the

balancing test was not clearly established in the ADA’s favor,

as the district attorney reasonably could have apprehended that

the ADA’s criticism of the defensive-driving program would harm

5
Brickey also contends that Hall effectively conceded a
lack of disruption by hiring Reynolds to conduct an
investigation. We disagree. Hiring an impartial investigator
in this circumstance, where Hall felt personally aggrieved, more
clearly reflects prudence than a lack of evidence.

18
the district attorney’s office by increasing its workload. Id.

at 307.

We rejected the government’s argument, relying largely on

its prior concession that “[t]here are no relevant facts to

challenge [the] finding that [the ADA’s] interest in speaking

outweighed the government’s interest in providing effective and

efficient services to the public,” but also further noting that

the government lacked “any evidence that [it] had any reason to

believe that [the ADA’s] interview would negatively affect the

efficiency or effectiveness of the DA’s office.” Id. at 309–10.

Here, Hall has not conceded the outcome of the Pickering

balancing test, and we have found that Hall, unlike the

government in Smith, had reason to believe that Brickey’s

comments would cause disruption.

In Durham, the right at issue was of public employees to

speak out on “serious governmental misconduct,” specifically, a

police officer’s right to accuse “high-ranking law enforcement

officials . . . of falsifying law enforcement reports and . . .

authorizing aggressive threats against a member of their own

agency if he persisted in his opposition to such a practice.”

737 F.3d at 303. Although the employer “paid lip service to

ostensible damage to office morale, relationships between

colleagues, and the function of the office generally,” we found

that the employer “was unable to articulate any way in which the

19
office would have been different or was actually different due

to [the employee’s] statements.” 737 F.3d at 302. Indeed, the

employer ultimately conceded that he had no reason to think that

the employee’s speech would prevent the police department from

carrying out its mission. Id. We held that the employer’s weak

evidence of disruption could not outweigh the importance of the

employee’s speech. Id. (“Serious, to say nothing of corrupt,

law enforcement misconduct is a substantial concern that must be

met with a similarly substantial disruption in the calibration

of the controlling balancing test.”).

Durham is not controlling for at least four reasons.

First, and most importantly, Hall has not merely “paid lip

service” to potential disruption to his police force, as we have

already explained. Unlike the employer in Durham, Hall could

reasonably have apprehended that the D.A.R.E. comments would

undermine his authority.

Second, Brickey’s speech did not clearly allege misconduct

of the same magnitude as that alleged in Durham. While the

possibility that $500 of public funds had been mislaid or even

misused may well have been significant to the citizens of

Saltville, Hall could reasonably have believed that it was not

the kind of “serious governmental misconduct” that our case law

had protected. Durham involved clear accusations that high-

ranking police officials were forcing officers to falsify

20
reports of incidents involving the officers’ use of force. Id.

at 296. Such a core abuse of the mission of a police department

is reasonably distinguishable from vague allegations of

mismanagement and even misuse of funds. 6

Third, Brickey claimed during the Reynolds investigation

that he never intended to accuse Hall of any wrongdoing. The

employee in Durham, by contrast, made unmistakable allegations

of misconduct with the intention of exposing the wrongdoing and

alerting the public. Knowing that Brickey did not intend to

expose misconduct, Hall could reasonably have believed that

Brickey’s speech did not deserve the same protection as that of

a whistleblower.

Fourth, Hall knew from the Reynolds investigation that

Brickey’s statements about the misuse of funds proved

misleading. As Brickey admitted, the D.A.R.E. funds were not

6 In holding that it was clearly established that the First
Amendment protects allegations of “serious governmental
misconduct,” Durham relies on Robinson v. Balog, 160 F.3d 183
(4th Cir. 1998). In Balog, which was available to Hall, public-
works employees suffered retaliation for their allegations that
a contributor to the mayor’s reelection campaign was illegally
rewarded with a contract to repair a landfill leachate pond and
subsequently failed to make the needed repairs. Id. at 184–85.
That these allegations of blatant, large-scale corruption
endangering public health were protected, see id. at 185, did
not clearly establish protection for Brickey’s statements.
Moreover, as in Smith and Durham, we based our decision to deny
qualified immunity in large part on “the lack of evidence
supporting the [government’s] interest in disciplining [the
employees] for their speech.” Id. at 189.

21
missing, and there were no improper charges to the account. 7 The

employee in Durham did not make such a concession to the

employer before his termination. Hall could reasonably have

believed that the inaccuracy of Brickey’s statements reduced

their value and increased his own interests in suppressing

future statements of the same kind. See Hustler Magazine, Inc.

v. Falwell, 485 U.S. 46, 52 (1988) (“False statements of fact

are particularly valueless; they interfere with the truth-

seeking function of the marketplace of ideas, and they cause

damage to an individual’s reputation that cannot easily be

repaired by counterspeech, however persuasive or effective.”);

Piver v. Pender Cty. Bd. of Educ., 835 F.2d 1076, 1081 (4th Cir.

1987) (noting an employer’s need for “protection from false

7After oral argument, Brickey submitted a letter bringing
to our attention the Supreme Court’s recent decision in
Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016). See Fed.
R. App. P. 28(j). In Heffernan, “a government official demoted
an employee because the official believed, but incorrectly
believed, that the employee had supported a particular candidate
for mayor.” 136 S. Ct. at 1416. The Court held that even
though the employee had not supported the candidate—and
therefore had not engaged in a constitutionally protected
activity—he nevertheless was entitled to bring a First Amendment
retaliation claim because “the government’s reason for demoting
[an employee] is what counts.” Id. at 1418. According to
Brickey, Heffernan establishes the broad rule that “a mistake of
fact does not defeat a First Amendment retaliation claim,” even
when an employee makes factually inaccurate claims regarding his
employer. See Appellee’s 28(j) Letter. Heffernan lends Brickey
no support. Not only does the case assume without deciding the
merits of the First Amendment claim, see id. at 1419, but more
to the point, it simply does not address the issue of factually
inaccurate employee speech.

22
accusations that may prove difficult to counter given the

employee’s supposed access to inside information”).

III.

We hold that it was not clearly established on the date of

Brickey’s termination that his speech interests as a citizen

outweighed Hall’s interests as an employer. Hall is therefore

entitled to qualified immunity. Accordingly, we reverse the

district court’s denial of summary judgment and remand for entry

of an order consistent with this opinion.

REVERSED AND REMANDED

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