SULLIVAN, J.
A township fire chief terminated a firefighter for sending a private email supporting a political candidate running for township trustee to a small group of citizens because the chief believed the email contained false statements of fact. We find that the email was constitutionally protected speech under the test set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), and its progeny. We also conclude that there are genuine issues of material fact that must be resolved in order to determine whether, as a matter of state law, the township is liable under 42 U.S.C. § 1983 for the fire chief’s actions.
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We first address the defendants’ argument that the First Amendment does not protect Love’s speech. This Court has not addressed the First Amendment rights of government employees since Indiana Department of Highways v. Dixon, 541 N.E.2d 877 (Ind. 1989). [Footnote omitted.] In the intervening 22 years, the United States Supreme Court has rendered several decisions related to government-employee speech. [Footnote omitted.] The defendants’ arguments implicate at least two separate areas of First Amendment doctrine explicated in Dixon and the Supreme Court’s cases.
A
A government employee may not be discharged or retaliated against for engaging in activity protected by the First Amendment, Perry v. Sindermann, 408 U.S. 593, 596-97, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), regardless of whether the employment is at-will or contractual, part-time or full-time, or probationary or permanent, see Rankin v. McPherson, 483 U.S. 378, 383-84, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987) (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284-85, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977), and Perry, 408 U.S. at 597-98). Because the defendants concede that Love was fired for his speech, and the record clearly supports this concession, 4 we consider only whether Love’s speech was protected.
B
The Free Speech Clause of the First Amendment prohibits the government from “abridging the freedom of speech.” [Footnote omitted.] U.S. Const. amend. I. The government generally may not impose content-based restrictions on speech unless it satisfies the strictest judicial scrutiny. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (“Content-based regulations are presumptively invalid.” (citations omitted)). The government, however, has broader discretion to regulate the speech of its employees, because there are different interests at stake when it acts as employer than when it acts as sovereign. Garcetti v. Ceballos, 547 U.S. 410. 418, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). When the government acts as an employer, its interest “in achieving its goals as effectively and efficiently as possible” is given greater value. Waters v. Churchill, 511 U.S. 661, 675, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (plurality opinion). Similar to a private employer, the government must exercise some control over its employees’ words and actions to fulfill its public duties. Garcetti, 547 U.S. at 418 (citation omitted). Thus, citizens who become government employees must accept certain limitations on their freedom. Id. (citation omitted).
Nevertheless, citizens who work for the government remain citizens and do not completely forfeit their fundamental liberties by virtue of their public employment. Id. at 419. Moreover, there is a strong societal interest in allowing public employees to contribute their well-informed ideas and opinions to public debate. Id. at 419-20.
In light of these competing interests, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Id. at 417 (citations omitted). In Pickering v. Board of Education, 391 U.S. 563, 566, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), the United States Supreme Court held that the First Amendment protected a public school teacher who wrote a letter to a newspaper in which he criticized the allocation of school funds and the manner by which the school board raised such funds. Rather than establishing a general constitutional standard applicable to all government-employee-speech cases, the Court held that the government’s interest as employer must be balanced on a case-by-case basis against the individual and societal First Amendment interests. Id. at 568, 571-72.
Pickering and its progeny provide a two-step analysis for determining whether the First Amendment protects an employee’s speech. First, the employee must have been speaking as a citizen on a matter of public concern. Garcetti, 547 U.S. at 418. If this threshold requirement is not met, then there is no First Amendment retaliation claim. Id. If the employee satisfies this threshold, then the Pickering balancing test must be applied to determine if the government was justified in “treating the employee differently from any other member of the general public.” Id.
B-1
The public employee must first establish that he or she was both (1) speaking as a citizen, Garcetti, 547 U.S. at 419-25, and (2) speaking on a matter of public concern, Connick v. Myers, 461 U.S. 138, 144-46, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). [Footnote omitted.] These two requirements are conditions precedent that serve as gatekeepers for the Pickering balance — they ensure both that the First Amendment is not used to transform every public employee’s work-related grievance into a constitutional case, id. at 147, 154, and that the judiciary does not become entangled in the day-to-day operational management of the political branches, Garcetti, 547 U.S. at 423.
We find that Love clearly satisfies the two threshold requirements of Garcetti and Connick. First, Love wrote the email from his home computer while he was off-duty; he was not fulfilling any of his duties as a firefighter. Like the letter to the editor in Pickering, Love was engaging in speech in which any other citizen could engage. The fact that the email was not published in a newspaper but was quasi-private because it was sent to a limited number of recipients is irrelevant, see Rankin, 483 U.S. at 384-87 (employee’s speech protected even though it was spoken privately to a coworker), as is the fact that it addressed a subject related (tangentially) to his employment, see Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414-16, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979) (employee’s speech protected even though related to her employment).
Second, the government’s allocation of funds and resources within the Department was clearly a matter of public concern, like the allocation of resources in Pickering. The designated evidence in no way suggests that Love’s email was an extension of any dispute with his superiors. Cf. Connick, 461 U.S. at 147-49 (holding that most of an employee’s statements that were made in the context of an employment dispute were not on matters of public concern, even though they might be under different circumstances). Rather, Love responded to an email challenging a political candidate’s campaign with an email supporting that political candidate’s campaign, in which he gave his own political opinion. In sum, this was a general grievance as to the operation of government like the letter in Pickering; it was not an employment-related grievance.
B-2
Even if an employee speaks as a citizen on a matter of public concern, the government employer can restrict the speech if it can carry its burden of proving that the First Amendment interests of the employee and society are outweighed by the employer’s interest in operational effectiveness and efficiency. E.g., Garcetti, 547 U.S. at 417-18; Connick, 461 U.S. at 149-51; Pickering, 391 U.S. at 568. But government employees who speak as citizens on matters of public concern “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419. To justify its retaliatory action, then, the government must establish that the speech had the potential to disrupt the efficiency and effectiveness of its operations. [Footnote omitted.] See, e.g., id. at 418 (restrictions on employee speech “must be directed at speech that has some potential to affect the entity’s operations” (emphasis added)); Pickering, 391 U.S. at 572-73 (holding that the speech was protected because it did not disrupt the efficient and effective operation of the classroom or the school).
Although the government employer bears the burden of establishing the potential disruptiveness or the harmful effects of the speech, it is “not required to produce actual evidence of disruption to prevail.” Gazarkiewicz v. Town of Kingsford Heights, 359 F.3d 933, 944 (7th Cir. 2004). Substantial weight is given to the government’s reasonable predictions of disruption when it acts as an employer. Id. (citing Waters, 511 U.S. at 673). Thus, the government employer does not need to wait for the actual “disruption of the office and the destruction of working relationships [to] manifest before taking action.”8 Connick, 461 U.S. at 152.
On the other hand, there must be evidence supporting the threat of harm to the government entity; the government’s concerns are not to be taken at face value. See Rankin, 483 U.S. at 388-92. Thus, mere allegations of disruption are not sufficient to sustain the government’s burden of showing that the speech threatened the efficiency and effectiveness of its operations — applying the Pickering balance “is not an exercise in judicial speculation.” Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002). Rather, courts must examine the “ordinary or foreseeable effect of the conduct . . . to determine whether it would be reasonably calculated to create division or to have impaired discipline.” Wright v. Ill. Dep’t of Children & Family Servs., 40 F.3d 1492, 1502 (7th Cir. 1994) (citation and internal quotation marks omitted). The government must therefore provide sufficient evidence to establish that the employee”s speech had the potential to disrupt or harm its operations had the retaliatory action not been taken. [Footnote omitted.]
If the government carries its burden, the nature and extent of the potential disruption must be weighed against the First Amendment value of the speech. See, e.g.. Connick, 461 U.S at 154. The government’s burden under Pickering “varies depending upon the nature of the employee’s expression.” Id. at 150. The stronger the First Amendment value of the speech, the stronger showing of harm the government must make to justify its action. See id. at 152 (cautioning that “a stronger showing [of harm] may be necessary if the employee’s speech more substantially involved matters of public concern”); Gustafson, 290 F.3d at 909 (citing Waters, 511 U.S. at 675).
Because the government employer in this case was a fire department, any predictions of harm to the Department are entitled to some deference, but they are not conclusive. Here, however, Chief Rehfus was not concerned about potential disruption, and the defendants did not allege any disruption in their brief supporting their motion for summary judgment in the trial court. [Footnote omitted.] Chief Rehfus testified that Love was terminated for lying about the Department in his email. There is thus little evidence suggesting the speech caused or had the potential to cause disruption or harm to the Department’s operations.
On appeal, the defendants make only a few arguments with regard to disruption. First, they argue that Chief Rehfus, upon advice of township counsel, was disrupted from his normal duties as Chief to gather specific documentation to prove that the allegations Love made in his email were false. Second, they argue that Love’s email resulted in debate among the firefighters in the Department over the email and its accuracy. Finally, they argue that Love’s email was intended to harm the political standing of the incumbent Trustee and his staff, including Chief Rehfus, and that the email had such effect.
The defendants’ first argument fails because Chief Rehfus was not required to undertake an investigation of the underlying facts — he could have chosen not to respond. There is no evidence suggesting that he was required to respond to cure any disruption in workplace harmony caused by the statements. In fact, he testified that he undertook these actions because he took personal offense to a few of Love’s statements. Similar to Pickering, 391 U.S. at 571, the fact that speech may have harmed the chief or the trustee does not necessarily impact the actual operations of the Department, even in the context of a fire department.
The defendants’ second argument also fails. The fact that several firefighters discussed the email and thought there may have been inaccuracies does not suggest that workplace harmony or discipline was disrupted. The firefighters had been discussing the election and were already split into opposing camps before Love’s email was circulated. And this election was particularly divisive. Therefore, any potential disruption would not have been caused solely by Love’s speech. See Cox v. Civil Serv. Comm’n, 259 Neb. 1013, 614 N.W.2d 273, 287 (Neb. 2000) (citation omitted) (discussing a similar situation). To be sure, the designated evidence shows that a flier critical of both Love and Boyer was circulated around the Department, but Chief Rehfus testified that this did not cause any disruption requiring him to take action; although he thought the flier was inappropriate, he took no action aside from discarding a copy that was left in his mailbox. And the fact that Love’s email provoked debate and discussion supports and possibly bolsters its important First Amendment value. [Footnote omitted.] Cf. Pickering, 391 U.S. at 571-72 (“[F]ree and open debate is vital to informed decision-making by the electorate.”).
The defendants’ third argument fails for a far more fundamental reason. The defendants contend that when a political message is intended to and does harm the political standing of a government official, such harm constitutes disruption under Pickering. But that would mean that the First Amendment’s protection for political speech decreases when the political efficacy of the speech increases. The fact that speech on a matter of public concern brings about its intended effect cannot be considered as harm or disruption under the Pickering balance.
The defendants rely on City of Kokomo v. Kern, 852 N.E.2d 623 (Ind. Ct. App. 2006), trans. denied, in arguing that they have shown adequate evidence of potential harm to the Department’s operations. In that case, the Court of Appeals affirmed the decision of a city public safety board to demote Kern from fire department “captain” to “firefighter” because of public statements made by Kern. Id. at 625. We denied transfer in Kern, but the denial of transfer signals neither agreement nor disagreement with the decision. App. R. 58(B). Since we do not have Kern before us, we pass no judgment on that case. We agree, however, with the Court of Appeals in this case that the facts here are significantly different from those in Kern. For instance, Love did not make a personal attack upon Chief Rehfus, which would be more likely to cause problems with maintaining harmony and discipline in a public safety organization. Love, 918 N.E.2d at 456. Although such a fact would not be dispositive, it would weigh in the government’s favor. Unlike the fire captain in Kern, Love expressed “his general disapproval of the effectiveness and the financial stability of the local fire department.” Id. Moreover, Love’s email stemmed from a hotly contested political campaign for public office, whereas Kern’s statements stemmed from a personal grievance over the denial of a fireworks permit. See Kern, 852 N.E.2d at 625-27.
Considering the strength of the First Amendment interest at issue here, it would have taken a substantial showing of significant disruption for the government’s interest to prevail under the Pickering balance. The defendants have failed to even approach the required showing. They have failed to show that Love’s email had any potential to create difficulties maintaining discipline or loyalty (aside from political loyalty) or to interfere with the close-working relationships in the Department. Moreover, nothing suggests that writing and sending the email interfered with either Love’s ability to perform his duties or the regular operation of the department. There also appears to be no employment dispute from which the speech arose; the only dispute appears to be a hotly contested political election. And the time, place, and manner of the speech are in Love’s favor because the email was written while he was off-duty and sent from his own computer. Moreover, the email cannot be considered a personal attack because it does not even reference Chief Rehfus by name or position, see infra Part I-C-3. Cf. Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000) (identifying similar factors to consider when applying the Pickering balancing test); Shands v. City of Kennett, 993 F.2d 1337, 1344 (8th Cir. 1993) (same).
We find that there are no genuine issues of material fact as to the facts considered under the Pickering balance and that Love’s speech was protected public-employee speech under the Garcetti-Connick-Pickering test. The government was not justified in treating Love differently from any other member of the general public.
….
We reverse in whole the order of the trial court granting summary judgment for the defendants and remand for proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.
Footnotes:
4 We agree with the conclusion of the Court of Appeals that Love was not terminated because of his political affiliation and that the political-affiliation cases, such as Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (plurality opinion), and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), are therefore inapplicable. Love, 918 N.E.2d at 453.
8 We recognize that the dictum in Dixon, 541 N.E.2d at 881, suggesting that the government “cannot base a discharge on possible bad effects or potential harm,” is incorrect to the extent that it is contrary to the decisions in Connick, Rankin, and Waters. There may be some instances where the government will be required to make an actual showing of harm to offset the strong First Amendment value of the speech, Waters, 511 U.S. at 674 (citations omitted), but in many (if not most) cases the government will not need to wait for actual disruption prior to taking action. Our clarification of this principle has no effect on the holding or the result in Dixon. Like Rankin, the evidence in Dixon did not support the employer’s claim that the employee’s statement would cause disruption. See Dixon, 541 N.E.2d at 881 (comparing the facts in Dixon to the facts in Rankin).