QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” -as the Fourth Circuit holds - if the speaker directed his or her statements to one person rather than the “larger public,” was motivated by some “ personal concern” in speaking about that subject, or was “not providing a particularly informed opinion”? (3) Can a defendant establish qualified immunity under Garcetti v. Ceballos, by showing that he or she could reasonably have believed that the action of the plaintiff was in his “capacity” as an employee (the rule in the Fourth Circuit), or only by showing he or she could reasonably have believed that the plaintiff spoke “pursuant to his professional responsibilities” (the rule in the First, Fifth and Ninth Circuits)?
Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, and Jennifer Munter Stark, Reply Brief. Crouse v. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), 2017 U.S. S. Ct. Briefs LEXIS 4102, 2017 WL 4918297 (2017) https://digitalcommons.law.uw.edu/faculty-court-briefs/38