A U.S. District Court decision today by Judge Janet Arteron provides a bit of clarity on some first amendment retaliation issues that may be helpful to some employers. The case, Milardo v. City of Middletown (Dec. 20, 2007), is by no means groundbreaking; the facts of the case allow the court to sidestep some issues by simply finding a lack of evidence to support some of the claims. 
Nevertheless, the case addresses, for example, the common argument of retaliation claims that mere temporal proximity should be sufficient to state a claim for retaliation. (Click here for prior posts on the issue of temporal proximity for retaliation.) The court here finds that the passage of nearly a year between an alleged complaint and the ultimate termination is insufficient to support a claim of retaliation.
One other interesting aspect is whether the filing of a Freedom of Information Act (FOIA) request is sufficient to form the basis of a First Amendment claim. The court says that the answer generally is no and that Plaintiff did not show that his case falls within the very narrow exception to that general rule.
As a general matter, courts have held that there is no First Amendment right to access government information, even by way of the FOIA. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 8–9 (1978) (plurality opinion) (“Neither the...
