Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—N.D. Ill.: Public defender’s First Amendment claim involving photo of herself with gun, Israeli flag advances, (Mar 25, 2025)

By Tulay Turan, J.D.

Engaging in the Pickering balancing test would be premature at the pleading stage.

A Cook County, Illinois public defender’s First Amendment claim—based on the display in her office of a photo of herself holding a gun in front of an Israeli flag—survived her employer’s motion to dismiss. A federal district court in Illinois found the photo related to speech as a private citizen on a matter of political concern but declined, at this stage, to weigh her interest in freedom of speech against the state’s interest in the efficient provision of services. The court, however, granted the employer’s motion to dismiss the prior restraint portion of her claim that she based on policies in the employee manual (Gassman v. Cook County, No. 24 C 01279 (N.D. Ill. Mar. 21, 2025)).

An attorney, who is Jewish and has worked for the Public Defender of Cook County since 1997, volunteered for the Israel Defense Forces in 2002. During her volunteer stint, she took a photograph of herself holding a gun in front of an Israeli flag. When she returned from Israel, she prominently displayed the photo in her shared office. When she later transferred to another location, she again displayed the photo without incident.

Photo moved. To bring attention to Hamas’ attack on Israel in October 2023, the attorney brought the photo out of her office and placed it on top of the employee mailboxes for her coworkers to see. It faced the back of the office toward the staff and was not visible to the public. Other employees regularly displayed items such as holiday decorations, photos, art, and cards in the same area.

Reprimand. When executive management learned of the photo, they instructed the public defender chief to remove it from the mailbox area. The attorney returned it to her private office, where it remained on display. However, she later received a written reprimand that the display of a firearm could be perceived as threatening and was instructed to no longer display it. To her knowledge, no public defender employee had ever been restricted from displaying a photo of a weapon.

Employee manual. The attorney also alleged that the employee manual prevented her from discussing this alleged censorship publicly. The manual regulates employee conduct and includes policies covering public relations and media and social media communications.

Charges filed. The attorney filed this 42 U.S.C. § 1983 claim against Cook County, Illinois and the Public Defender of Cook County in his official capacity. She alleged the defendants violated her First and Fourteenth Amendment rights by censoring her speech and enforcing employee policies that prevented her from discussing the alleged censorship with the media. Cook County filed this motion to dismiss.

Display of photo. The court denied Cook County’s motion to dismiss the attorney’s First Amendment claim involving the display of her photo. Noting that the display of the photo constituted speech, the court found the attorney was speaking as a private citizen because her speech was unrelated to her employment. In addition, her speech related to a matter of political and social concern.

Balancing test. Under the Pickering framework, the court’s next step would be to weigh a public employee’s interest in freedom of speech against the government’s interest in the efficient provision of services. The Public Defender argued that the attorney’s interest in the speech was “outweighed by the operational interests of the Public Defender.” The attorney refuted that and contended that engaging in the Pickering balancing test was premature.

The court agreed with the attorney. Citing Seventh Circuit precedent, the court noted the test is a fact-intensive inquiry that normally is possible only after the parties have conducted some discovery. Accordingly, as the Seventh Circuit has advised, such an issue should not be decided at the pleading stage. The court here concluded that conducting the Pickering balancing test at this stage would be premature, and it denied Cook County’s motion to dismiss the First Amendment claim to the extent it relied on allegations regarding the photo.

Prior restraint claim. Addressing the attorney’s second theory—prior restraint—in support of her First Amendment claim, the court granted Cook County’s motion to dismiss because she failed to plead facts supporting the essential elements of the claim. The attorney alleged the employee manual, specifically the public relations/media policy and the social media policy, amounted to an unconstitutional prior restraint because it was impermissibly broad and restricted her from speaking publicly. The court disagreed.

The public relations/media policy did not qualify as a prior restraint because it did not prohibit her from speaking as a private citizen. The policy only applied to official matters, preventing employees from speaking to the media on behalf of the Public Defender. It did not preclude her speech regarding the effect of the Public Defender’s policies on her personally.

Turning to the social media policy, the court found it was broad enough to restrict posts on any subject matter, including an employee’s private affairs, so long as “any people or organizations [are] identified.” It therefore applied to employees’ speech as private citizens on matters of public concern.

Nonetheless, she alleged nothing about the Public Defender’s process for reviewing social media posts before they occurred. She did not allege that the Public Defender may grant or withhold consent to author a social media post based on the “content of the communication.” The policy was premised only on the directive to “[r]espect the privacy of others,” and made no reference to the content of the proposed speech. She also failed to allege that the Public Defender’s approval “involves appraisal of facts, the exercise of judgment, and the formation of an opinion by the decision maker.” She did not even specify the decision maker empowered to review posts.

Without more, she failed to state a claim based on the social media policy. Thus, the court granted Cook County’s motion to dismiss her First Amendment prior restraint claim.

Indemnification. Finally, the court ruled that her second count, which was an indemnification claim against Cook County, survived because a portion of her first count had survived.

The case is No. 24 C 01279.

Judge: Lefkow, J.

Attorneys: David J. Fish (Workplace Law Partners) for Debra Gassman. Charles Thomas Little, Cook County State's Attorney, for Cook County.

Cases: IndividualRights PublicEmployees IllinoisNews