No Obligation Arbitrate Free Speech Claims

Written on 04/16/2022
Will Aitchison

George Forbush is an officer with the Sparks Police Department in Nevada and is a member of the Sparks Police Protective Association. The Association’s contract with the City contains a disci­plinary clause providing: “No post-pro­bationary employee will be disciplined or discharged without just cause.”

In 2020, Forbush posted a variety of comments from his personal Twitter account. In response to a video depicting several individuals attempting to light an American flag on fire, Forbush wrote, “I would be a good helper and throw a lot of gasoline in their direction as they held their lighters and say oops as I walked away.” Commenting on a video depicting individuals at a Black Lives Matter march breaking the window of a car and beating the driver, Forbush posted: “I have six AR-15 rifles. I always thought having an AR-15 or AK-47 pistol was pointless because of lack of shouldering but now I’m going to build a couple AR pistols just for BLM, Antifa or active shooters who cross my path and can’t maintain social distancing.”

In response to a video showing a person masturbating in a park in the City, Forbush commented, “Next time put him in some cross-hairs or on a red dot, please.” And in response to a video regarding a police officer who had been convicted of planting evidence, making false statements, and framing defendants, Forbush wrote: “He made a lot of good cops look bad. It would be ironic if some­one planted drugs by cramming them up his ass so they could be found during an intake search when he goes to prison for what he did. That would be the tip of the iceberg on the punishment scale.”

The City received an anonymous complaint about Forbush’s posts, and a local newspaper ran a column about the issue of a police officer’s right to express opinions on social media. On August 10, 2020, 14 people made comments at a City Council meeting regarding For­bush’s posts. Nine commenters expressed support for Forbush, and four expressed disapproval.

When the City eventually imposed a four-day suspension on Forbush, he filed a grievance under the Association’s contract. He also brought a federal court lawsuit, contending his discipline violat­ed his free speech rights. The City then moved to dismiss the lawsuit, contending that Forbush was required to arbitrate the disputes under the Association’s contract.

The Court refused to dismiss the lawsuit. The Court observed that “although this is a disciplinary matter and some claims arising from it may be subject to arbitration, Defendants have failed to show there was an agreement to arbitrate Forbush’s free speech claims. The Ninth Circuit recently reiterated that an exception exists to the general rule in favor of compelling arbitration in labor disputes for claims based on federal statutes that contain specific substantive guarantees for workers. One such statute is 42 U.S.C. § 1983.

“The labor contract does not ex­plicitly waive the right to pursue federal statutory claims in a judicial forum. While the Court acknowledges that an arbitrator may hear federal claims – including constitutional claims – as a matter of contractual agreement, Defendants have failed to show that the CBA includes an explicitly stated, clear and unmistakable waiver of judicial forum. There is no reference to arbitra­tion or the waiver of a judicial forum for adjudicating represented employees’ constitutional rights.”

Forbush v. City of Sparks, 2021 WL 6551282 (D. Nev. 2021).

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