From right now’s resolution by Choose Joan Lefkow (N.D. Ailing.) in Gassman v. Cook dinner County; as normal on a movement to dismiss, the factual recitation consists of the allegations from plaintiff’s Criticism (not any factual findings by a choose or jury):
Debra Gassman is an Assistant Public Defender for the Public Defender of Cook dinner County, Illinois. She has been employed as a lawyer by the Public Defender since 1997 …. Gassman is Jewish and “dedicated to Israel.”
In 2002, Gassman volunteered for the Israel Protection Forces (“IDF”). In December of 2002, throughout her volunteer stint, Gassman took {a photograph} of herself holding a gun in entrance of an Israeli flag (“the photograph”). The photograph was taken in Tel HaShomer, a military base close to Tel Aviv. The photograph is roughly 11 inches tall. It’s reproduced under:
When Gassman returned from Israel in 2002, she prominently displayed the photograph in her shared workplace on the Leighton Legal Courthouse in Chicago. The photograph reminds Gassman of her time spent defending Israel and the Jewish individuals. To Gassman, the photograph indicators that the Jewish individuals should “keep sturdy” when threatened by different nations. The photograph remained there, undisturbed, till she transferred to the Public Defender’s workplace in Skokie, Illinois, in October 2020. In Skokie, Gassman once more displayed the photograph in her shared workplace “with out incident.”
On October 7, 2023, Hamas terrorists invaded Israel and attacked civilians. Gassman was “devastated, shocked, and scared by the October 7 assaults.” She returned to work on October tenth. Upon returning, Gassman felt upset that “few appeared to care—and even had been conscious of”—the assault on Israel. “[T]o deliver consideration to the assaults that had occurred in Israel and the necessity to help the victims,” Gassman introduced the photograph out of her workplace and positioned it on prime of the worker mailboxes for her coworkers to see. Gassman positioned the photograph in order that it confronted the again of the workplace towards the employees; it was not seen to the general public. Public Defender workers frequently show gadgets corresponding to vacation decorations, images, artwork, and playing cards in the identical space.
When govt administration (Cook dinner County Deputy Public Defender Parle Roe-Taylor and Rodney Carr) discovered of the photograph, they instructed the Public Defender “Chief” to take away it. Carr and Roe-Taylor informed Gassman’s supervisors that the photograph was “similar to a Nazi swastika.” Gassman eliminated the photograph and returned it to her personal workplace, the place she continued to show it. The photograph was “not seen to members of the general public.”
On October 20, 2023, Mitchell issued a written reprimand to Gassman. The reprimand defined that Gassman’s show of {a photograph} depicting a firearm “might be perceived as threatening and subsequently is[] inconsistent” with the Public Defender Worker Guide (“Worker Guide”) coverage relating to office violence. The reprimand additional famous, “tragic world occasions probably motivated this show and will have compromised your judgment. We now have thought-about this in our resolution to not pursue any disciplinary motion presently.”
On October 30, Roe-Taylor went to the Skokie workplace. Whereas Gassman labored in court docket, Roe-Taylor entered Gassman’s workplace and confiscated the photograph. Roe-Taylor then requested a gathering with Gassman and “[her] Chief.” Roe-Taylor conveyed that the photograph amounted to displaying a firearm in public view.
Gassman’s Chief obtained the photograph and returned it to Gassman however instructed that it couldn’t be displayed inside her workplace as she had performed beforehand. Government administration additional defined that the photograph couldn’t be positioned the place “anybody may see it from any angle of the entryway to her workplace.” The photograph was not in public view, nevertheless, when Roe-Taylor confiscated it. Gassman’s workplace is within the again nook of the Skokie workplace and barely visited. Gassman doesn’t use her workplace to satisfy with shoppers.
The Public Defender typically permits workers to show footage and different messages inside their workplaces with out censorship or regulation. Public Defender workers have even been permitted to show images of weapons that didn’t depict the Israeli flag. A senior supervisor, as an illustration, as soon as emailed a picture of a movie character pointing a gun at one other to roughly twenty public defenders. The e-mail included the joking comment: “[W]e all know what can occur when there’s a distinction of opinion.” Moreover, Public Defender workers have positioned signage within the Public Defender’s workplace to have a good time favorable verdicts.
Photographs from these congratulatory posts typically depict weapons, together with weapons. The Public Defender has additionally permitted workers to own precise weapons of their workplaces, corresponding to weapons and swords.
To Gassman’s information, no Public Defender worker has ever been restricted from displaying {a photograph} of a weapon. Furthermore, nobody ever complained that the photograph was distressing or inappropriate till the occasions described in her Criticism. On the contrary, those that noticed the photograph commented favorably on it and expressed admiration for her service within the IDF.
Gassman sued, and the court docket allowed her First Modification declare associated to the removing of the photograph to go ahead:
As an preliminary matter, the court docket concludes that Gassman’s alleged shows of the photograph represent “speech” implicating the First Modification. T.V. ex rel. B.V. v. Smith-Inexperienced Cmty. Sch. Corp. (N.D. Ind. 2011) (displaying images “itself expressed an intention to speak the expression inherent within the … conduct and the photographs of it … [and] qualifies as ‘speech’ inside the which means of the First Modification”).
The correct analytical framework right here is present in Pickering–Connick which is particular to authorities workers: the check “weighs a public worker’s curiosity in freedom of speech in opposition to the federal government’s curiosity within the environment friendly provision of companies.”
To find out whether or not a plaintiff engaged in speech protected by the First Modification, the court docket first asks if the worker spoke (1) as a personal citizen; and (2) on a matter of public concern. If the reply to both of those questions is “no,” then the worker has no First Modification declare. If each preliminary parts are met, the court docket subsequent asks whether or not “‘the curiosity of the state, as an employer, in selling the effectivity of the general public companies it performs by its workers’ outweighs ‘the pursuits of the [employee], as a citizen, in commenting upon issues of public concern.'”
Gassman alleges that she displayed the photograph on the mailboxes “to deliver consideration to the assaults that had occurred in Israel and the necessity to help the victims” and to “share the atrocities happening.” She additional alleges that the photograph’s “core message” is that “Israel and Jewish individuals have the correct to not be exterminated.”
Gassman’s speech is unrelated to her employment and Defendants concede Gassman was talking as a personal citizen. The court docket subsequently finds that Gassman spoke as a personal citizen when she displayed the photograph above the mailbox and in her personal workplace.
Subsequent, the court docket considers whether or not Gassman spoke on a matter of public concern. Speech is directed at a matter of public concern if it “pertains to any matter of ‘political, social, or different concern to the group.'” … The court docket finds that Gassman’s speech pertains to a matter of political and social concern.
The court docket subsequent asks whether or not “‘the curiosity of the state, as an employer, in selling the effectivity of the general public companies it performs by its workers’ outweighs ‘the pursuits of the [employee], as a citizen, in commenting upon issues of public concern.'” Defendants argue that Gassman’s curiosity within the speech “is outweighed by the operational pursuits of the Public Defender.” Gassman refutes this and contends that participating within the Pickering balancing check is untimely.
The Pickering balancing check is a fact-intensive inquiry that “[n]ormally … will probably be doable solely after the events have had a chance to conduct some discovery.” Accordingly, “the Seventh Circuit has suggested that such a difficulty shouldn’t be determined on the pleading stage.” The court docket subsequently concludes that conducting the Pickering balancing check at this stage could be untimely.
{Gassman alleges that the Public Defender’s removing and censorship of the photograph was “pretextual and primarily based on its content material.” “The place a plaintiff claims that the said grounds for his/her self-discipline had been a pretext for the self-discipline imposed, the court docket doesn’t apply the Pickering balancing check solely to the speech that defendants declare motivated the disciplinary motion …. Relatively, the court docket considers all the speech that the plaintiff alleges is protected.” As a result of making use of the Pickering balancing check is untimely, nevertheless, the court docket needn’t attain these points.}
The court docket rejected, nevertheless, Gassman’s claims that specific insurance policies associated to worker speech had been unconstitutional prior restraints; these insurance policies weren’t concerned within the removing of the photograph, however Gassman claimed they’d have an effect on her means to debate the removing of the photograph.
