When is public employee's speech protected? Court sides with phone-sex memoir's author

In a recent decision from the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers), the court addressed First Amendment protection for public employees when they engage in speech not related or tied to their work. The case provides an overview of the proper analysis of public employee retaliation claims based on the First Amendment.

Facts

Amy Harnishfeger authored and published a book under a pseudonym about her time working as a phone-sex operator. The book conveys her perspective as someone who had blindly entered the industry believing it was simply “flirty fun,” only to be horrified by what some of the callers discussed. It describes five of the most extreme examples and shares her reflections on the social role of phone-sex operators, as well as her own experience. She used a private Facebook account visible only to her “friends” to post a link to the e-book for sale through Amazon.

Shortly thereafter, Harnishfeger began working with the Indiana Army National Guard as a member of the Volunteers in Service to America (VISTA) program, which is part of AmeriCorps. The program is administered by the Corporation for National and Community Service (CNCS), a federal government agency.