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Ethics Lawyer Fired for Tweets About Islam Goes Before 6th Cir.

Oct. 19, 2022, 9:00 AM

A federal appeals court in Cincinnati will hear oral argument over whether the Tennessee Supreme Court’s legal ethics board must face a retaliatory discharge lawsuit filed by a lawyer who was sacked for posting tweets that were critical of Muslims.

Jerry Morgan, who worked at the state Supreme Court’s Board of Professional Responsibility, has asked the US Court of Appeals for the Sixth Circuit to revive his lawsuit arguing that his tweets were protected by the First Amendment.

Morgan posted the tweets at issue—which he said dealt with issues in the national political discourse, with some mirroring views expressed by former President Donald Trump—before he worked for the government.

The case, which will be heard Wednesday, shows the potential repercussions of workers’ past statements on social media. As a public sector employee, Morgan could challenge his termination in court on constitutional grounds, but most workers in the private sector have little legal recourse.

The dispute also highlights the obstacles that judiciary employees can face when suing for allegedly illegal workplace actions, an issue that’s commanded increased attention throughout the #MeToo era.

Federal judiciary workers aren’t covered by Title VII of the 1964 Civil Rights Act’s anti-discrimination protections, leaving a narrow lane for legal claims of job bias. A former federal public defender, for example, was allowed in April to pursue some constitutional claims against the Fourth Circuit stemming from her allegations of sexual harassment.

Morgan’s lawsuit against the Tennessee Supreme Court’s Board of Professional Responsibility and its chief disciplinary counsel was derailed at the trial court level by two separate immunity doctrines.

The First Amendment retaliation claim against the ethics board was blocked by sovereign immunity because the board is an arm of the state, US District Judge Waverly Crenshaw ruled in March. The same claim against the board official who fired Morgan was trumped by quasi-judicial immunity because the official was acting within the scope of the authority delegated to her by the Tennessee Supreme Court, said Crenshaw, an Obama appointee.

Sixth Circuit Judges Alice Batchelder, a George H.W. Bush appointee; John Bush, a Trump appointee; and Stephanie Davis, a Biden appointee, are reviewing the lower court’s decision.

‘#1 Issue of Our Time’

The case originated when attorney Brian Manookian appealed his law license suspension. Manookian, who is married to a Muslim woman, moved to disqualify Morgan in 2020 for alleged anti-Muslim bigotry based on multiple tweets Morgan posted.

A tweet from Dec. 8, 2015 read: “Where’s the evidence that ‘Islam is a religion of peace’? They’ve gone to war against every society they’ve encountered for 1000s of years.”

Other tweets warned that Muslims will “take everything we give them” and use it “against us,” declared that the “#1 issue of our time” is “stopping Muslims,” and stated that the “Constitution does NOT REQUIRE us to let in more Muslims!”

Chief disciplinary counsel Sandra Garrett fired Morgan, citing Manookian’s disqualification motion, a separate misconduct complaint lodged by a different attorney, and Morgan’s duty to handle cases without bias.

Immunity Contested

Morgan argued in his brief filed with the Sixth Circuit that Garrett didn’t deserve immunity because employment decisions are administrative actions. He pointed to the appeals court’s 1987 decision in Guercio v. Brody, which emphasized the distinction between judicial acts, which merit immunity, and administrative actions performed by judges, which don’t.

Morgan said his termination wasn’t at all related to a judicial process, as he had no pre-firing hearing or appeal available.

“Ms. Garrett wants the benefits of judicial immunity without the burdens of a judicial proceeding,” Morgan said in his brief. “She is not entitled to the former without the latter.”

In addition, he said, the district court was “simply incorrect” to hold that sovereign immunity blocks his claims for a ban on adverse employment actions based on his speech, and a court order to clear the board’s internal tracking system of references to speech-related discipline. Such prospective injunctive relief should be allowed under the US Supreme Court’s 1908 decision in Ex parte Young, Morgan said.

State Finds Shields

The Tennessee Attorney General’s Office, which represents the board, argued in its brief that the Ex parte Young exception to sovereign immunity doesn’t allow Morgan’s requested injunction.

That exception applies when a plaintiff sues a government official acting in his or her official capacity for prospective relief to end a continuing violation of federal law, government lawyers said. Morgan sued the board and Garrett in her individual capacity, and didn’t allege any ongoing federal law violations, they said.

The district court was right to grant Garrett quasi-judicial immunity because her decision to terminate Morgan was “intimately associated” with his performance as a lawyer in the state’s disciplinary board, government lawyers said. Firing Morgan based on the complaints against him was intertwined in the judicial process, they said.

Morgan’s lawyer, Gary Blackburn of the Blackburn Firm, said it’s unfortunate when a state agency takes a side in a political debate from years earlier.

“I don’t support Donald Trump, but I very much support the First Amendment,” Blackburn said by telephone.

The Tennessee Attorney General’s Office didn’t respond to a request for comment on the case.

The case is Morgan v. Bd. of Pro. Resp., 6th Cir., No. 22-05200, oral argument 10/19/22.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com