How the Kentucky Supreme Court passed on its chance to protect public employees' speech
When a white Lexington police sergeant shot and killed an unarmed Black teenager in October 1994, John E. Whitley Jr. took to the airwaves and condemned the shooting as a cold-blooded murder.
“They just murdered the kid,” said Whitley, who also was Black, on a citizen’s radio frequency monitored by police and emergency services. “He was holding his hands over his head and they just murdered him.”
Whitley wasn’t the only one who reacted angrily: The shooting of Tony Sullivan triggered riots in Lexington. But Whitley wasn’t just anyone. He was a police officer for the state Vehicle Enforcement Division, then part of the Transportation Cabinet.
The agency suspended him for eight days for “improper public statements” and other violations.
Unlike courts in at least 20 other jurisdictions that have held public employees have the right to free speech, a Kentucky court had never so ruled.
Whitley’s case offered the Kentucky Supreme Court that chance.
First, the Franklin Circuit Court upheld Whitley’s punishment, which included four days for “conduct unbecoming and “discourtesy" and another four for "improper public statements." Whitley appealed to the Court of Appeals, which affirmed the four-day suspension for discourtesy, but reversed the suspension for improper statements, holding that it violated Whitley's First Amendment right to free speech.
But the cabinet appealed and the Kentucky Supreme Court voted 5-2 to affirm the original punishment, reinstating the suspension for improper statements, which it said risked creating tension and strife between the vehicle enforcement agency and Lexington Police.
The controversy divided the court, which said defining the degree of First Amendment protection afforded to those who choose to work in the public sector requires “a difficult balancing between their rights and the agency’s interest in order and discipline."
The majority also said what it called Whitley’s “disruptive statements” were of “minimal public importance.”
Chief Justice Robert Stephens and Justice Janet Stumbo begged to differ. They said Whitley’s speech “unquestionably involved a matter of grave public concern” − the shooting of an unarmed civilian by police.
“I think that with this opinion the majority is making very bad law,” Stephens wrote in dissent, “and this Court will be haunted by the breadth of this decision as we see the power to muzzle government employees used in an increasingly expansive manner.”
The court declined to carve out First Amendment protections for public employees in Kentucky.
Whitley, who taught Sunday school and drove the church van at St. Paul AME Church in Lexington, died in 2011 at age 72.
Lexington Police Sgt. Phil Vogel said his gun accidentally discharged, shooting Sullivan in the head. He was not charged.
More: Abduction, rape and murder: Should Kentucky pay up when prosecutors get it wrong?
Reporter Andrew Wolfson can be reached at (502) 396-5853 or awolfson@courier-journal.com.
This article originally appeared on Louisville Courier Journal: Kentucky Supreme Court had chance to protect public workers' speech
