“Citizen Speech” in the Courthouse: Second Circuit Holds a Court-Clerk’s Aid to a Judicial Misconduct Probe Is Potentially Protected by the First Amendment

Introduction

In Long v. Byrne, No. 24-3080 (2d Cir. July 30, 2025), the United States Court of Appeals for the Second Circuit revisited the difficult boundary between an employee’s official‐duty speech and constitutionally protected “citizen” speech. Samantha Long, former Clerk of the Justice Court for the Town of New Lebanon, alleged that she was fired after: (i) providing requested case files to a representative of the New York State Commission on Judicial Conduct (the “Commission”) investigating Town Justice Jessica Byrne, and (ii) refusing Byrne’s demand that Long reveal details of that confidential investigation. The district court dismissed, holding that Long acted pursuant to her official duties and thus enjoyed no First Amendment protection under Garcetti v. Ceballos. The Second Circuit vacated and remanded, finding Long’s complaint plausibly alleged she acted as a private citizen when she cooperated with – and kept silent about – the Commission’s probe.

Summary of the Judgment

1. The panel (Lynch, Park, & Robinson, JJ.) unanimously vacated Judge D’Agostino’s Rule 12(b)(6) dismissal.
2. It held Long plausibly alleged citizen speech: her refusal to discuss the investigation with Byrne, and provision of files at the Commission’s request, were outside her ordinary job responsibilities as clerk.
3. Because at least one theory of protected speech survived, the court reinstated the federal First Amendment claim and revived supplemental jurisdiction over Long’s state whistle-blower claim (N.Y. Civ. Serv. Law § 75-b).
4. The court emphasized the preliminary posture: discovery may yet reveal her actions were within job duties or otherwise unprotected, but dismissal at the pleading stage was premature.

Analysis

Precedents Cited & Their Influence

Garcetti v. Ceballos, 547 U.S. 410 (2006): Establishes two-step framework distinguishing citizen speech from employee speech.
Pickering v. Board of Education, 391 U.S. 563 (1968): Balancing employee speech interests with government efficiency; step two of Garcetti.
Lane v. Franks, 573 U.S. 228 (2014): Testimony outside an employee’s ordinary duties is citizen speech even if knowledge derived from work.
Weintraub v. Board of Educ., 593 F.3d 196 (2d Cir. 2010): Introduced “civilian analogue” concept for discerning citizen status.
Anemone v. MTA, 629 F.3d 97 (2d Cir. 2011): Example where reporting misconduct was within official duties, hence unprotected.
Ross v. Breslin, 693 F.3d 300 (2d Cir. 2012): Employee’s internal report of payroll irregularities deemed official duty speech.
Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011): Recognized First Amendment protection for refusal to make false statement to police.
Specht v. City of New York, 15 F.4th 594 (2d Cir. 2021): Clarified use of “civilian analogue.”

The court meticulously contrasted Long with Anemone and Ross: unlike the director of security or payroll clerk, Long’s job description (as pleaded) did not encompass advising a judge about Commission rules or disclosing complainant identities. The panel analogized her situation to Lane and Jackler, stressing that cooperation with outside investigators – and refusal to violate confidentiality – can be quintessential citizen conduct.

Legal Reasoning

Citizen vs. Employee Speech
The court reiterated that the core question is whether the speech is “itself ordinarily within the scope of the employee’s duties,” not merely related to them. Accepting the complaint’s allegations, Long’s duties did not include briefing a judge on Commission investigations or breaching a confidentiality directive.
Refusal to Speak Is Speech
Drawing on Wooley and Riley, the panel reaffirmed that the First Amendment safeguards both expression and the choice to remain silent.
Civilian Analogue
Long’s refusal resembled any private individual’s choice to keep silent when a target of an investigation presses for information—akin to “discussions (or non-discussions) of politics with a co-worker” (quoting Garcetti).
Insufficient Record on File-Production
The pleadings lacked detail regarding her authority over files; whether the files were public, sealed, or improperly removed; and whether handing them over was routine. Those gaps made dismissal inappropriate pending discovery.
Procedural Posture
Because Long plausibly alleged protected activity on at least one theory, the dismissal of the federal claim was error; the pendent state whistle-blower claim should likewise proceed.

Impact of the Decision

Reinforces Confidential Cooperation Protections: Court employees asked to assist independent oversight bodies may claim First Amendment protection when such cooperation is outside ordinary duties.
Limits Over-Broad Use of “Work Hours/Workplace” Factor: Merely being at work or speaking to a supervisor does not automatically convert speech into employee speech.
Guides Pleading & Discovery: Defendants will need factual development (job descriptions, past practice, policies) before relying on Garcetti to defeat claims at the pleadings stage.
Synergy with State Whistle-Blower Law: The revival of § 75-b claims underscores federal–state interplay; plaintiffs may proceed on parallel theories.
Administrative & Judicial Integrity: The ruling may encourage clerks and similar staff to aid judicial-conduct bodies without fear of immediate retaliation.

Complex Concepts Simplified

Garcetti Test: A two-step inquiry: (1) Was the employee speaking as a citizen on a matter of public concern? (2) If so, did the government have a sufficient justification (efficiency, discipline, harmony) to restrict that speech?
Citizen Speech: Expression (or silence) outside one’s routine work duties, entitled to higher constitutional protection.
Civilian Analogue: A non-governmental channel or context through which an ordinary citizen could express the same message (e.g., letters to a newspaper, refusing to answer questions).
First Amendment Retaliation Elements: Protected speech, adverse action, and causal link.
New York Civil Service Law § 75-b: State whistle-blower statute shielding public employees from retaliation when they disclose wrongdoing to certain bodies.
Motion to Dismiss (Rule 12(b)(6)): Court assumes pleaded facts are true; dismissal improper unless no plausible claim exists.

Conclusion

Long v. Byrne meaningfully clarifies that a lower-level court employee’s assistance to, and silence about, an external judicial-misconduct investigation can constitute protected “citizen speech” if such conduct falls outside her ordinary assignments. The Second Circuit’s willingness to allow the claim past the pleadings erects a caution sign for municipal employers: adverse action taken against staff who cooperate with oversight bodies will invite robust First Amendment scrutiny. Simultaneously, the decision illustrates the granular, fact-specific nature of the Garcetti inquiry and highlights the importance of a developed record before constitutional claims are dismissed. Going forward, trial courts in the Circuit must parse job duties realistically, not formally, and permit discovery where those duties are unclear. For practitioners, Long is both sword and shield—an avenue for plaintiffs to plead retaliation plausibly, and a reminder to defendants to document employees’ responsibilities meticulously.