1st Amendment Violation

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7^th Circuit Court of Appeals

Case Name: Amy Harnishfeger v. United States of America, et al.

Case No.: 18-1865

Officials: ROVNER, HAMILTON, and BRENNAN, Circuit Judges.

Focus: 1^st Amendment Violation

This appeal deals with First Amendment protection for public employees when they engage in speech that is not related ortied to their work. Plaintiff Amy Harnishfeger authored a short book, published under a pseudonym, about her time as a phone‐sex operator called Conversations with Monsters: 5 Chilling, Depraved and Deviant Phone Sex Conversations. A month after publishing Conversations, Harnishfeger began what was to have been a one‐year stint with the Indiana Army National Guard as a member of the Volunteers in Service to America (VISTA) program, a federal antipoverty program administered by the Corporation for National and Community Service (CNCS).

But when Harnishfeger’s National Guard supervisor discovered Conversations and identified Harnishfeger as its author, she demanded that CNCS remove Harnishfeger from her position. CNCS complied. Harnishfeger was unable to find another suitable placement for the remainder of her VISTA service, so, three months after she started, CNCS cut her from the program entirely. Harnishfeger filed this suit alleging violations of her rights under the First Amendment and the Administrative Procedure Act (APA). The district court granted the defendants’ motions for summary judgment. Harnishfeger v. United States, 2018 WL 1532691 (S.D. Ind. March 29, 2018). Harnishfeger appeals.

We reverse in part and affirm in part. Conversations with Monsters is clearly protected speech, and on this record, a jury could find that Harnishfeger’s National Guard supervisor, Lieutenant Colonel Lisa Kopczynski, infringed her free‐speech rights by removing her from her placement because of it. We find no basis, however, for holding CNCS or its employees liable, so we affirm the judgment in favor of the federal defendants

Reversed in part. Affirmed in part.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.