Fourth Circuit affirms summary judgment on Virginia Tech public radio station manager's First Amendment and due process claims

In Mills v. Steger, the Fourth Circuit in an per curiam opinion for a panel including Judge Blaine Michael, Judge Karen Williams, and Judge Greenberg from the Third Circuit, affirmed the summary judgment entered by Judge Wilson of the W.D. Va. on the First Amendment and due process claims of the former station manager of WVTF, the public radio station that is a part of Virginia Tech. Monica Taylor Monday from Gentry Locke argued for the appellant (which is no surprise, since Monica is one of the appellate gurus and Gentry Locke is the firm that ex-Tech presidents, coaches, and the like always hire).

On the due process claim, the Court notes that Mills was not a tenured employee, that his "tenure" was at most a year, under the terms of his employment contract. The Court rejected Mills' claim that his transfer from WVTF to another position with an AM station was a deprivation of his property interest in his continued employment, citing Huang v. UNC, among other cases. The Court concluded that the procedure by which Mills was terminated did not fall below the level of process that Mills was due under the Constitution.

On the First Amendment claim, Judge Wilson for the district court had concluded in this opinion that the defendants did not violate Mills' First Amendment rights, because "Mills’ interest in speaking out on the programming decisions at WVTF is outweighed by Virginia Tech’s interest, as an employer, in promoting the efficiency of the public services it performs through its employees." The Fourth Circuit disagreed on the merits, concluding that under Connick the programming of the radio station was a matter of public concern and under Pickering the University's interest in avoiding the disruption caused by Mills' speech was slight, however, the individual defendants were protected by qualified immunity, because the outcome of the First Amendment analysis is almost never clear.

I think Judge Wilson had it right - the guy was in a high visibility position, he was in the news and on the radio all the time, he was calling some of the listeners "Opera Nazis," and it seems to me that the Court underestimated the disruptive impact of having the operator of what was literally the voice of the university out of sync with the administration. Probably Judge Wilson got a sense of this just reading his morning newspaper there in Roanoke. Not long ago I posted here a decision from the First Circuit about the First Amendment claims of the director of the PEG channels for a local government - the cases strike me as quite similar. For that matter, I think this case is similar to the Dixie McVey case, which defendants won ultimately after the first appeal, which was cited at some length in this Mills opinion. (Judge Michael was on the two panels in the McVey case and he voted in the last appeal the same way as he did in Mills, that there was a First Amendment violation but qualified immunity.) The government employee with a high level of public contact should not be able to claim broad free speech rights when there is substantial likelihood because of his public content of confusion about whether he speaks for his employer.

I don't disagree with the qualified immunity analysis. The Fourth Circuit has fairly consistently found qualified immunity in speech cases, the notable exception being in the Cromer case, in which the Court took some pains to explain that it was the exception.