In an opinion that is perhaps best described as both remarkable and confounding, the United States Court of Appeals for the Fourth Circuit recently held that “the Free Speech Clause has no application in the context of speech expressed in a competitive interview.” In other words, at least in the Fourth Circuit, any applicant for any governmental position can be retaliated against based solely on an opinion uttered in an interview that the interviewer doesn’t like. Because this holding is completely out of step with established law, on Friday we filed a petition asking the entire Fourth Circuit (as opposed to the panel of three judges who issued the opinion) to consider the issue and correct this egregious legal error.
The decision was issued in our lawsuit on behalf of Dustin Buxton, an applicant to the Radiation Therapy Program at the Community College of Baltimore County, about whom we have previously written. Although Mr. Buxton alleged that he lost points, and was ultimately denied admission to the program, because of a single statement he made during the admissions interview process – answering, in response to the interviewers’ direct question, that he bases his morals on his faith – the Fourth Circuit panel, astonishingly, concluded that his private speech was afforded no protection by the Free Speech Clause of the First Amendment, even against blatant viewpoint discrimination – i.e., governmental imposition of special burdens or prohibitions on speech deemed disagreeable.
As we explained in our petition for rehearing, because the panel’s decision “grants the government unfettered discretion to ferret out applicants for no other reason than their expression of disfavored views,” the full court must hear the matter and remedy this mistaken ruling. Otherwise, any applicant for any governmental position can be retaliated against based solely on an opinion uttered in an interview that the interviewer doesn’t like, with no recourse.
For example, a county clerk applicant, whose job duties have absolutely nothing at all to do with firearms, could be denied the job solely because, during the job interview, she expressed an opinion favoring gun rights. Or a student applying to a public law school could be denied admission because he made a statement during the interview indicating he opposes abortion. Or an applicant seeking a public law enforcement position could be penalized based on a statement expressing his views on climate change.
While those seeking to fill competitive positions must certainly be able to consider what an applicant says in interviewing for the role in order to select the most qualified candidates, such consideration must bear some rational relationship to governmental functions in the position at issue. As the foregoing examples indicate, the panel’s decision imposes no such limitation on the discretion of governmental decision-makers. Rather, it opens the door to one of the very evils against which the Free Speech Clause is intended to protect – the government’s ability to effectively silence certain speakers and eliminate certain ideas and viewpoints from the marketplace.
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