Plaintiff Threatened the District Staff’s Jobs, Reputation, Careers, and Legal Liability—Not Their Physical Safety

From Pryor v. School Dist. No. 1, decided yesterday by the Tenth Circuit, in an opinion by Judge Joel Carson, joined by Judges Timothy Tymkovich and Scott Matheson:

The First Amendment protects those who petition the government for redress of grievances, even though such speech may offend government officials or damage their public reputation. Plaintiff Brandon Pryor passionately—and at times profanely—criticized actors within Defendant Denver School District No. 1 (“District”) when he advocated for change within the District. In response, Defendants stripped him of his volunteer position and restricted his access to District facilities. Because the District likely acted in retaliation against Plaintiff’s First Amendment rights, we exercise jurisdiction under 28 U.S.C. § 1292 and affirm the district court’s preliminary injunction….

Plaintiff Brandon Pryor advocates for quality educational opportunities in Far Northeast Denver (“FNE Denver”). His advocacy takes many forms: he texts privately with District administration, speaks with officials in person, appears on local podcasts and news media, posts on social media, attends board meetings and work groups, and participates in public comment sessions. He has also served as a volunteer football coach in FNE Denver for many years. In 2019 he co-founded a school in FNE Denver: the Robert W. Smith STEAM Academy (“STEAM Academy”).

In October 2022, the District served on Plaintiff a letter from Aaron Thompson, the District’s general counsel (“Thompson Letter”). The Thompson Letter alleged that Plaintiff had displayed “abusive, bullying, threatening, and intimidating conduct directed at [District] staff.” As support for its allegations, the Thompson Letter described interactions between Plaintiff and District staff throughout the previous two years. The Thompson Letter also quoted Plaintiff’s text messages, personal Facebook posts, and statements from phone calls and a local podcast.

The Thompson Letter explained that Neisa Lynch, newly hired principal of Montbello High School in FNE Denver, had complained to the District that Plaintiff subjected her to harassment, defamation, and slander and that he had intimidated and threatened her and her husband. In her complaint, Lynch cited many of Plaintiff’s Facebook posts—including a post that specifically called for Lynch’s resignation or termination; a post in which Plaintiff stated that she (and others) “are a disgrace to the entire community”; and a post that included Lynch’s husband’s LinkedIn profile and stated: “What are the chances that Neisa Lynch and her husband Mike Lynch worked together to steal our kids [sic] game? … I’m sure they’ve talked about it all …” Lynch also complained that Plaintiff told community members not to enroll children at her school; called her derogatory names such as “plantation builder”; and—according to the Thompson Letter—”suggest[ed] her colleagues have endured hate speech, harassment, defamation, and slander by [Plaintiff] as well.”

{Lynch was not the first District employee to complain about Plaintiff. Other District employees had complained that Plaintiff had become angry with them and had yelled and cursed in personal interactions. In response to these complaints, the District investigated and found that Plaintiff acted unprofessionally but did not violate District policies on harassment. The District ultimately did not enforce restrictions on Plaintiff based on these prior complaints.}

Each conversation, post, or interaction that the Thompson Letter listed related in some manner to Plaintiff objecting to or calling for changes in District operations. In many posts, Plaintiff called for the resignation or termination of District officials; in others, he criticized District officials for operational missteps or decisions with which he disagreed. The text messages between Plaintiff and District staff included specific demands, sometimes coupled with derogatory statements directed at the staff. Some of Plaintiff’s statements, as quoted in the Thompson Letter, were cryptic, such as “Warning! Don’t poke a resting bear!” And a few statements contained expletives—such as the following: “Watch out for the Black folks trying to Whitesplain this bullshit” (in a Facebook comment related to a post criticizing Lynch for hiring decisions); and “Stay the fuck away from me” (in a phone conversation with the District’s Regional Instructional Superintendent after Plaintiff learned she had canceled a planning meeting for the school he founded).

The Thompson Letter stated that Plaintiff violated various District policies and restricted Plaintiff’s access to District facilities and relationship with the District. Plaintiff appealed these restrictions. The District eventually removed some restrictions, allowing Plaintiff to attend District Board meetings and participate in public comment sessions in person. But the District maintained two categorical restrictions (“Restrictions”): (1) the District removed Plaintiff from his position as volunteer football coach; and (2) the District revoked Plaintiff’s privileged access to District facilities, including STEAM Academy, that he had previously enjoyed based on his status as a school founder.

The Tenth Circuit upheld a preliminary injunction that barred the District from “enforcing the Thompson Letter restrictions and from taking any other retaliatory action against Plaintiff, his family, or STEAM Academy for pursuing the lawsuit.” The court concluded that, even if plaintiff, as a volunteer, was to be treated as an employee for First Amendment purposes, the school district’s actions were likely unconstitutional:

In each interaction or conversation in question, Plaintiff expressed that he intended to expose wrongdoing in the local school board and school administration. Plaintiff revealed specific information about local schools and officials, presented his grievances to the board and members of the administration, and made specific requests for change that would affect the entire community. This content, form, and context fits speech intended to petition the government for redress of grievances. Plaintiff’s personal passion on these issues does not lessen the community’s interest in potential malfeasance by local government officials. Thus, Plaintiff spoke on matters of public concern….

The First Amendment protects an employee’s dissenting speech [on matters of public concern] “unless the employer shows that some restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee.” Expected public reaction that impacts external relationships does not constitute a detrimental impact and does not weigh in the District’s favor. A governmental employer must justify the restrictions on an employee’s speech by showing that, based on the employer’s interest, its need for the restrictions outweighs the employee’s right to speak.

We give great weight to an employee’s First Amendment rights when he speaks out to expose government corruption—especially when the employee has first complained directly to the governmental entity’s administration. In such cases, the governmental entity must carry an even higher burden of showing a stronger interest than we would otherwise require. This is because a governmental entity’s interest in efficient operations should not only encompass a desire for a harmonious employee environment but should also extend to extinguishing corruption and misconduct.

Defendants argue that Plaintiff’s speech threatened their safety. But the district court found that Plaintiff’s speech did not endanger the District employees’ safety or security—only their jobs. The record includes testimony by Defendants themselves that Plaintiff threatened the District staff’s jobs, reputation, careers, and legal liability—not their physical safety. Defendants contend Plaintiff wanted a physical fight and rely on Plaintiff’s text messages to Nicky Yollick, a community member, in which Plaintiff stated, “When I see you you are going to have a problem,” and, “Send address and I can come now” (“Yollick Messages”). But Plaintiff testified that his intent in the Yollick Messages was to meet for a conversation and that Plaintiff and Yollick had a shared history in advocacy related to District operations. Thus the district court did not clearly err in its finding.

Meanwhile, Plaintiff spoke on matters of serious concern to the taxpaying public—school funding, cronyism, educational choice, and discrimination. And he repeatedly engaged directly with District officials in his attempts to effect change. So, Plaintiff’s interest in speaking is strong. The impoliteness, passion, or profanity of his speech do not overcome his free speech interests. And the offensive, vulgar manner of Plaintiff’s speech does not deprive him of constitutional protections—especially in the context of petitioning the government for redress for grievances.

Defendants fail to show that their interest in enforcing the Restrictions outweighs Plaintiff’s interest in speaking. Moreover, Defendants’ failure to enforce restrictions after prior complaints, engage in conflict resolution or mediation, or make any other effort to protect its employees contradicts any assertion that they have a significant interest in enforcing the Restrictions. Defendants’ testimony that Plaintiff threatens their reputations suggests that Defendants’ interest lies in curbing an expected public reaction. This does not weigh in their favor because the District lacks a valid interest in avoiding embarrassment or irritation at the expense of community members’ free speech rights. Thus, Defendants do not carry their burden of justifying the Restrictions and the third factor weighs in Plaintiff’s favor….

Andrew McNulty and Mari Newman of Killmer, Lane & Newman, LLP represent plaintiff.