PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1910

RANDALL E. BRICKEY,

Plaintiff - Appellee,

v.

ROBB HALL,

Defendant – Appellant,

and

DICKIE DYE; T. MICHAEL TAYLOR; ERIK C. PUCKETT; NEIL 

JOHNSON; C. TODD YOUNG; TOM HOLLY; VINCENT MAIDEN,

Defendants.

Appeal from the United States District Court for the Western 

District of Virginia, at Abingdon. Glen E. Conrad, Chief 

District Judge. (1:13−cv−00073−GEC−PMS)

Argued: December 10, 2015 Decided: July 8, 2016 

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Reversed and remanded by published opinion. Judge Diaz wrote 

the opinion, in which Judge Duncan and Judge Keenan joined. 

ARGUED: Jeremy E. Carroll, GLENN, FELDMANN, DARBY & GOODLATTE, 

Roanoke, Virginia, for Appellant. Edward Kyle McNew, 

MICHIEHAMLETT PLLC, Charlottesville, Virginia, for Appellee. ON 

BRIEF: Andrea Kay Hopkins, GLENN, FELDMANN, DARBY & GOODLATTE, 
2

Roanoke, Virginia, for Appellant. Hilary K. Johnson, Abingdon, 

Virginia, for Appellee.
3

DIAZ, Circuit Judge:

Police officer Randall Brickey was fired for comments he 

made as a candidate for town council that were critical of his 

employer, the Saltville Police Department, and its Police Chief, 

Rob Hall. Brickey filed suit under 42 U.S.C. § 1983 for 

retaliatory discharge in violation of the First Amendment. The 

district court denied Hall qualified immunity, and this 

interlocutory appeal followed. Because it was debatable at the 

time of Brickey’s dismissal that his speech interests as a 

citizen outweighed Hall’s interests as a public employer, we 

conclude that Hall is entitled to qualified immunity. We 

therefore reverse.

I.

A.

Brickey was an officer with the Saltville Police Department 

from December 1, 2006, to May 21, 2012, the day his employment 

was terminated. Hall became Police Chief in July 2011, taking 

over a department struggling with well-publicized problems of 

financial mismanagement, officer misconduct, and a general lack 

of professionalism. In an effort to improve the department’s 

operations and public image, Hall instituted several policy 

changes, including increased foot patrols, a stricter dress 

code, and new payroll procedures.
4

In early 2012, Brickey decided to run for Saltville Town 

Council. He discussed the plan with Hall, who indicated that 

the campaign would not cause employment problems so long as 

Brickey did not campaign in uniform or disparage the department 

in contravention of departmental policy.

During the campaign, two local newspapers posed questions 

to the candidates, inviting them to submit responses for 

publication. One paper provided this prompt: “Motivation for 

seeking office/why should the voters choose you?” J.A. 337. 

After identifying himself as a member of the Saltville Police 

Department with twenty-three years of experience as a police 

officer, Brickey responded in relevant part as follows:

I teach the D.A.R.E. [i.e., Drug Abuse Resistance 

Education] Program at Saltville Elementary 

School. . . . I went in to talk to Chief (Rob) Hall 

about ordering the supplies for the D.A.R.E. 

graduation. I was told there was no money to place 

the order. After checking with the accounts payable 

clerk to see where the $500 in the police department 

budget had been spent, I was shown several invoices 

that were charged to the D.A.R.E. account. The items 

on the invoices had nothing to do with the D.A.R.E. 

program. I also found, from looking at a copy of the 

budget that I obtained from the town, that the town 

receives $225,000 in highway maintenance funds from 

the state. Only $3,000 is approved in the budget for 

paving. Seeing this, along with the other misuse of 

taxpayers’ money, shows me that we have a very poor 

management at the council level and there needs to be 

a change.

Id. 
5

Next, in response to a question about the town’s “greatest 

needs,” Brickey noted road paving, improved management of the 

town pool, and the following changes to the Saltville Police 

Department: “The town police department needs to be more 

professional. Officers need to do more foot patrols during the 

day shift and become more familiar with business owners. The 

police department needs to be more [aggressive] on 

investigations and focus more on drug trafficking.” Id.

Finally, Brickey responded to a question as to how to meet 

those needs. He first noted that he had “been told by some 

business owners in town during [his] campaign for town council 

that they would like to see more foot patrols from the police 

department, and would like to see the chief during daytime 

hours.” Id. He went on to propose the addition of a full-time 

investigator, stating that the town had a serious drug problem 

and that he knew of “cases that need to be investigated by the 

police department.” Id. Brickey’s statements were printed in 

late April 2012.

About a week later, Hall informed Brickey that he believed 

Brickey’s statements violated departmental policy. The alleged 

violations of the Police Department Policy Manual included (1) a 

failure to “display respect for [his] superior officers, 

subordinates, and associates”; (2) “speak[ing] rumors 

detrimental to the department or another employee”; (3) “us[ing] 
6

or attempt[ing] to use [his] official position, badge or 

credentials for personal or financial gain or advantage”;

(4) “communicat[ing] . . . information concerning operations, 

activities or matters of police business, the release of 

which . . . may have an adverse impact on the department image, 

operations, or administration”; and (5) “criticiz[ing] or 

ridicul[ing] the Department, its policies, or other employees by 

speech . . . [that] undermines the effectiveness of the 

Department, interferes with the maintenance of discipline, or is 

made with reckless disregard for truth or falsity.” J.A. 352-

55, 357-70.

Hall hired Gary Reynolds—an out-of-state, former police 

chief—to investigate the allegations and to determine whether 

Brickey in fact violated departmental policies. Reynolds 

interviewed Hall, Brickey, Assistant Chief Erik Puckett, the 

Saltville town auditor, and the other five officers in the 

police department. In speaking with Reynolds, Brickey withdrew

or attempted to clarify some of his statements. Asked about his 

comments on the professionalism of the department, Brickey said, 

“It’s not that I meant they are unprofessional, we just need to 

be on patrol more.” J.A. 373. Regarding the D.A.R.E. comments, 

Brickey admitted that the $500 was in fact accounted for in a 

different line item of the budget. J.A. 384. He also conceded 

that he “should have said mismanagement of funds versus misuse 
7

of funds.” J.A. 387. Brickey insisted that his “statements 

regarding the DARE account were not about Chief Hall, they were 

about the [town] council members.” J.A. 383. 

According to Reynolds’s investigation, Brickey’s statements 

caused concern within the Saltville government and police 

department. A town auditor interpreted Brickey’s statements as 

alleging that Chief Hall was misusing funds. J.A. 381. This 

“upset” the auditor, who, after looking into the matter, “found 

no misuse of taxpayer money by Chief Hall.” Id. Some police 

officers believed that the comments reflected poorly on the 

department, though at least two officers told Reynolds that they 

had not read Brickey’s comments. J.A. 381-83, 386.

In Reynolds’s final estimation, Brickey’s statements to the 

newspapers violated departmental policies. J.A. 387. According 

to Reynolds, Brickey’s statements regarding the “misuse” of 

D.A.R.E. funds “clearly ‘bad mouthed’ the Police Department and 

especially the Police Chief, and thus were harmful to the public 

trust of Chief Hall as well as his integrity.” Id. Moreover, 

Reynolds faulted Brickey for failing to investigate properly or 

verify his allegations that police funds were being misused. 

J.A. 388. Specifically, Reynolds found that Brickey overlooked 

the fact that the D.A.R.E. budget line item also included funds 

for “Community Relations,” and that the invoices Brickey 

observed were for legitimate community-relations expenses. Id.
8

After notifying Brickey of the results of the 

investigation, Hall held a meeting with Brickey, Reynolds, and 

Puckett in which Brickey was given an opportunity to respond to 

the allegations and the findings of the report. On May 21, 

2012, Hall terminated Brickey’s employment. Brickey pursued the 

department’s grievance procedures to no avail.

B.

Brickey filed suit under § 1983, naming as defendants Hall 

and a number of other individuals who played a role in his 

dismissal. In addition to his First Amendment retaliatorydischarge claim, Brickey also asserted procedural and 

substantive due-process claims. The due-process claims were 

dismissed on a 12(b)(6) motion, as was a request for punitive 

damages. The retaliatory-discharge claim survived, and the 

defendants later moved for summary judgment, attacking the claim 

on the merits and also asserting qualified immunity. The 

district court granted the motion in part and denied it in part. 

Brickey v. Hall, No. 1:13-CV-00073, 2014 WL 4351602, at *9 (W.D. 

Va. Sept. 2, 2014). Summary judgment was granted as to all 

defendants except Chief Hall—none of the other officials, the 

court held, had “caused” Brickey’s injury, as Hall was the lone 

decisionmaker. Id. at *8. 

As to Hall, the district court denied qualified immunity. 

Id. The district court first held that, taking the record in 
9

the light most favorable to Brickey, Hall violated Brickey’s 

First Amendment rights. Id. at *4–7. Having found a violation, 

the district court determined that Brickey’s right not to be 

fired for his speech was clearly established at the time of his 

termination. Id. at *7–8. Relying on Citizens United v. FEC, 

558 U.S. 310 (2010), the court stated that political speech was 

clearly entitled to strong protection. Id. at *8. And relying 

on Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), the court 

stated that public employees’ speech regarding governmental

misconduct warrants protection. Id.

This interlocutory appeal followed.1

II.

We review de novo the denial of qualified immunity. Altman

v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003).

Qualified immunity shields government officials from 

personal liability when “their conduct does not violate clearly 

established . . . rights of which a reasonable person would have 

known.” Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014)

 1 Although “interlocutory appeals are generally disallowed, 

‘a district court’s denial of a claim of qualified immunity, to 

the extent that it turns on an issue of law, is [immediately 

appealable] notwithstanding the absence of a final judgment,’ 

under the collateral-order doctrine.” Iko v. Shreve, 535 F.3d 

225, 234 (4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S. 

511, 530 (1982)).
10

(quoting Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam)). 

That is, qualified immunity protects government officials when 

they act in legal “gray areas.” Id. (quoting Occupy Columbia v. 

Haley, 738 F.3d 107, 118 (4th Cir. 2013)). An official is 

entitled to qualified immunity unless “(1) the allegations 

underlying the claim, if true, substantiate [a] violation of a 

federal statutory or constitutional right; and (2) this 

violation was of a clearly established right of which a 

reasonable person would have known.” Id. at 308 (quoting 

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 

(4th Cir. 2006)). While a case directly on point is not 

required for a court to conclude that the law was clearly 

established, “existing precedent must have placed the . . . 

constitutional question beyond debate.” Id. (quoting Ashcroft 

v. al-Kidd, 563 U.S. 731, 741 (2011)). The burden of proof 

rests with the official asserting the defense. Durham, 737 F.3d 

at 299.

Brickey alleges retaliatory discharge in violation of the 

First Amendment. On appeal, Hall does not challenge the 

district court’s holding that Brickey has properly alleged a 

constitutional violation—the first qualified-immunity prong. 

Instead, Hall contends that the right Brickey asserts was not 

clearly established in 2012 when Brickey was terminated. Our 

review, therefore, is confined to the question of what law was 
11

clearly established—we do not reach the merits of Brickey’s 

constitutional claim.

A First Amendment retaliation claim poses three questions:

(1) whether the public employee was speaking as a 

citizen upon a matter of public concern or as an 

employee about a matter of personal interest; 

(2) whether the employee’s interest in speaking upon 

the matter of public concern outweighed the 

government’s interest in providing effective and 

efficient services to the public; and (3) whether the 

employee’s speech was a substantial factor in the 

employee’s termination decision.

McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998). The third

question is not in dispute; Hall concedes that he terminated 

Brickey because of his speech. But Hall contends that the law 

was not clearly established on the first two questions. 

Because we hold that the law was not clearly established as 

to the second question—the balancing of the employee’s and 

employer’s interests—Hall is entitled to qualified immunity. 

Consequently, we need not reach the question of whether it was 

clearly established that Brickey spoke as a citizen on a matter 

of public concern.

A.

Under the Supreme Court’s decision in Pickering v. Board of 

Education, a court’s charge in a First Amendment retaliation 

case is “to arrive at a balance between the interests of the 

[employee], as a citizen, in commenting upon matters of public 

concern and the interest of the State, as an employer, in 
12

promoting the efficiency of the public services it performs 

through its employees.” 391 U.S. 563, 568 (1968). The public’s 

interest in hearing the employee’s speech also weighs in the 

balance: “A stronger showing of public interest in the speech 

requires a concomitantly stronger showing of government–employer 

interest to overcome it.” McVey, 157 F.3d at 279 (Murnaghan, 

J., concurring).2

“The Pickering balance requires full consideration of the 

government’s interest in the effective and efficient fulfillment 

of its responsibilities to the public.” Connick v. Myers, 461 

U.S. 138, 150 (1983). Prior to Brickey’s termination, the test

for striking the appropriate balance was clear:

“[W]e must take into account the context of the 

employee’s speech” and “the extent to which it 

disrupts the operation and mission” of the 

institution. Factors relevant to this inquiry include 

whether a public employee’s speech (1) impaired the 

maintenance of discipline by supervisors; (2) impaired 

harmony among coworkers; (3) damaged close personal 

relationships; (4) impeded the performance of the 

public employee’s duties; (5) interfered with the 

operation of the institution; (6) undermined the 

mission of the institution; (7) was communicated to 

the public or to coworkers in private; (8) conflicted 

with the responsibilities of the employee within the 

institution; and (9) abused the authority and public 

accountability that the employee’s role entailed.

 2 At this point in his concurrence, Judge Murnaghan speaks

for a majority of the McVey panel. See 157 F.3d at 282 (Michael, 

J., concurring in the lead opinion “except to the extent it is 

qualified by Judge Murnaghan’s separate opinion”). 
13

Ridpath, 447 F.3d at 317 (citation omitted) (quoting McVey, 157 

F.3d at 278). The employer need not prove actual disruption,

“but only that an adverse effect was ‘reasonably to be 

apprehended.’” Maciarello v. Sumner, 973 F.2d 295, 300 (4th 

Cir. 1992) (quoting Jurgensen v. Fairfax Cty., 745 F.2d 868, 879 

(4th Cir. 1984)). 

It was clearly established in 2012 that police officials

are entitled to impose more restrictions on speech than other 

public employers because a police force is “‘paramilitary’—

discipline is demanded, and freedom must be correspondingly 

denied.” Id. (quoting Jurgensen, 745 F.2d at 880) (granting 

qualified immunity to a police official who terminated two 

officers for conducting an unauthorized investigation into 

alleged evidence tampering in the police force). Because of 

this heightened need for discipline, police officials have 

“greater latitude . . . in dealing with dissension in their 

ranks.” Id.

The key comments in this case involve the allegedly missing

D.A.R.E. funds.3 As an initial matter, despite Brickey’s claim 

 3 We agree with the district court that it was clearly 

established that Brickey’s other comments were entitled to First 

Amendment protection. Statements that the department “needs to 

be more professional,” “needs to be more [aggressive] on 

investigations,” or ought to hire an investigator do not raise a 

reasonable apprehension of disruption. J.A. 337. Not only do 

these statements offer modest criticism of the department and 

(Continued)
14

that he did not intend to impugn his chief, Hall could 

reasonably have read the comments—as some others in Saltville 

did—to accuse him of incompetence or even malfeasance. A town 

auditor, for example, read the comments to allege misuse on the 

Chief’s part, and (according to declarations given by Hall, 

Assistant Chief Puckett, and the town manager) some members of 

the police force and the public expressed concerns of police 

misconduct in the wake of the articles. See J.A. 93 (Hall: 

“Some residents also construed Brickey’s comments as accusing me 

and the department of corruption and misusing funds.”); J.A. 312 

(Puckett: “I was asked questions about the articles from members 

of the public who expressed concern that officers were engaging 

in misconduct.”); J.A. 316 (Town Manager: “Officers expressed 

their belief that Brickey had accused them of improper 

behavior . . . .”); id. (“Many people who commented about the 

articles expressed concern that someone was stealing money from 

the Town.”).

The clearly established principles outlined above did not 

put the outcome of the Pickering balancing in this case “beyond 

debate.” The context and the extent of disruption of the 

D.A.R.E. comments weighed on both sides of the scale. First, 

 

its chief, but they also touch on weaknesses of the department

that were already well known in Saltville.
15

Brickey spoke as a political candidate in a public forum. In 

general terms, speaking as a political candidate weighs in favor 

of speech. At the same time, however, the public nature of 

Brickey’s comments increased their capacity for disruption. 

Second, Brickey’s speech criticized a superior officer. As our 

cases reflect, discipline and respect for superior officers are 

critical in a police force. Because speech accusing a superior 

officer of incompetence or malfeasance goes to the heart of the 

superior’s authority, Hall could reasonably have believed that 

Brickey’s comments would undermine his authority in the eyes of 

the public and within the police department. See J.A. 316 (Town 

Manager stating that “[b]ased on my observations of officers in 

the Police Department, Brickey’s comments hampered morale and 

discipline in the department”). Such a concern is amplified in 

the close working conditions of a small police force, where 

“mutual confidence and co-operation are essential.” Cooper v. 

Johnson, 590 F.2d 559, 562 (4th Cir. 1979). Furthermore, Hall 

was working to restore credibility to the department. He

reasonably could have believed that Brickey’s comments would set 

back his efforts and increase public distrust in him and the 

department as a whole. Finally, Reynolds conducted an 

independent investigation of Brickey’s statements and concluded 

that they “were harmful to the public trust of Chief Hall as 
16

well as his integrity.” J.A. 387. Such a finding supports the 

conclusion that Hall reasonably apprehended disruption.

In sum, the parties have not directed us to any case that 

would have clearly warned Hall that terminating Brickey for his 

comments about the D.A.R.E. funds would violate his First 

Amendment rights. On the contrary, our case law had stressed 

the broad discretion granted police officials to limit speech 

when discipline is at stake. As a result, we cannot say that it

was beyond debate that Brickey’s interests outweighed Hall’s.

B.

Brickey’s counter-arguments are unpersuasive. He relies

principally on Citizens United v. FEC, 558 U.S. 310 (2010), 

which held that the government may not prohibit corporate 

expenditures to support or criticize political candidates. In 

Brickey’s view, “[n]othing could have been more clearly 

established in May 2012 than the sanctity of political speech.” 

Appellee’s Br. at 28. However, such a broadly framed right 

could not have answered the question facing Hall: when does a 

police chief’s need to maintain discipline and harmony permit 

him to infringe on an officer’s right to make public statements 

as a political candidate insinuating wrongdoing by a superior 

officer? See al-Kidd, 563 U.S. at 742 (stating that courts may 

not “define clearly established law at a high level of 

generality”).
17

While a case directly on point is not required to clearly 

establish the answer to this question, Citizens United addresses

only one side of the Pickering scale, and it does so on very 

different facts. Cases more closely on point have not treated 

political speech as inviolate in the public-employment context. 

See, e.g., Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013) 

(holding that it was clearly established in 2009 that “a 

reasonable sheriff could have believed he had the right to 

choose not to reappoint his sworn deputies for political 

reasons, including speech indicating the deputies’ support for 

the Sheriff’s political opponent”); see also Waters v. 

Churchill, 511 U.S. 661, 672 (1994) (plurality opinion) (“Even 

something as close to the core of the First Amendment as 

participation in political campaigns may be prohibited to 

government employees.”).

Brickey next contends that Hall has nothing on his side of 

the Pickering scale but “rank speculation,” and he likens the 

anticipated disruption here to that in Smith v. Gilchrist and 

Durham v. Jones. Appellee’s Br. at 31-32.4 We have already 

explained that Hall had a “reasonable apprehension” of 

 4 Both Smith and Durham were published after May 21, 2012 

(the date of Brickey’s termination), but they held that certain 

rights were clearly established prior to that date. While the 

cases could not have assisted Hall, we are nevertheless bound by 

their holdings.
18

disruption,5 and we now explain why Smith and Durham are 

distinguishable. 

In Smith, an assistant district attorney (“ADA”) running 

for public office gave a televised interview in which he 

criticized a local defensive-driving program. 749 F.3d at 305. 

Because completion of the program allowed ticketed drivers to 

receive a “prayer for judgment continued,” the district 

attorney’s office (the “government”) benefitted from the program 

by a substantially reduced caseload. Id. When the district 

attorney terminated the ADA’s employment soon after the 

interview, the ADA brought a First Amendment retaliation suit. 

Id. at 306.

In the district court, the government conceded that the ADA 

“had forecasted evidence sufficient to establish that his 

interest in speaking outweighed the government’s.” Id. at 309. 

Nevertheless, the government argued that the outcome of the 

balancing test was not clearly established in the ADA’s favor, 

as the district attorney reasonably could have apprehended that 

the ADA’s criticism of the defensive-driving program would harm 

 5 Brickey also contends that Hall effectively conceded a 

lack of disruption by hiring Reynolds to conduct an 

investigation. We disagree. Hiring an impartial investigator 

in this circumstance, where Hall felt personally aggrieved, more 

clearly reflects prudence than a lack of evidence. 
19

the district attorney’s office by increasing its workload. Id.

at 307.

We rejected the government’s argument, relying largely on 

its prior concession that “[t]here are no relevant facts to 

challenge [the] finding that [the ADA’s] interest in speaking 

outweighed the government’s interest in providing effective and 

efficient services to the public,” but also further noting that 

the government lacked “any evidence that [it] had any reason to 

believe that [the ADA’s] interview would negatively affect the 

efficiency or effectiveness of the DA’s office.” Id. at 309–10. 

Here, Hall has not conceded the outcome of the Pickering

balancing test, and we have found that Hall, unlike the 

government in Smith, had reason to believe that Brickey’s 

comments would cause disruption.

In Durham, the right at issue was of public employees to 

speak out on “serious governmental misconduct,” specifically, a 

police officer’s right to accuse “high-ranking law enforcement 

officials . . . of falsifying law enforcement reports and . . .

authorizing aggressive threats against a member of their own 

agency if he persisted in his opposition to such a practice.” 

737 F.3d at 303. Although the employer “paid lip service to 

ostensible damage to office morale, relationships between 

colleagues, and the function of the office generally,” we found 

that the employer “was unable to articulate any way in which the 
20

office would have been different or was actually different due 

to [the employee’s] statements.” 737 F.3d at 302. Indeed, the 

employer ultimately conceded that he had no reason to think that 

the employee’s speech would prevent the police department from 

carrying out its mission. Id. We held that the employer’s weak 

evidence of disruption could not outweigh the importance of the 

employee’s speech. Id. (“Serious, to say nothing of corrupt, 

law enforcement misconduct is a substantial concern that must be 

met with a similarly substantial disruption in the calibration 

of the controlling balancing test.”).

Durham is not controlling for at least four reasons. 

First, and most importantly, Hall has not merely “paid lip 

service” to potential disruption to his police force, as we have 

already explained. Unlike the employer in Durham, Hall could 

reasonably have apprehended that the D.A.R.E. comments would 

undermine his authority. 

Second, Brickey’s speech did not clearly allege misconduct 

of the same magnitude as that alleged in Durham. While the 

possibility that $500 of public funds had been mislaid or even 

misused may well have been significant to the citizens of 

Saltville, Hall could reasonably have believed that it was not 

the kind of “serious governmental misconduct” that our case law 

had protected. Durham involved clear accusations that highranking police officials were forcing officers to falsify 
21

reports of incidents involving the officers’ use of force. Id.

at 296. Such a core abuse of the mission of a police department 

is reasonably distinguishable from vague allegations of 

mismanagement and even misuse of funds.6 

Third, Brickey claimed during the Reynolds investigation 

that he never intended to accuse Hall of any wrongdoing. The 

employee in Durham, by contrast, made unmistakable allegations 

of misconduct with the intention of exposing the wrongdoing and 

alerting the public. Knowing that Brickey did not intend to 

expose misconduct, Hall could reasonably have believed that

Brickey’s speech did not deserve the same protection as that of 

a whistleblower. 

Fourth, Hall knew from the Reynolds investigation that 

Brickey’s statements about the misuse of funds proved 

misleading. As Brickey admitted, the D.A.R.E. funds were not 

 6 In holding that it was clearly established that the First 

Amendment protects allegations of “serious governmental 

misconduct,” Durham relies on Robinson v. Balog, 160 F.3d 183 

(4th Cir. 1998). In Balog, which was available to Hall, publicworks employees suffered retaliation for their allegations that 

a contributor to the mayor’s reelection campaign was illegally 

rewarded with a contract to repair a landfill leachate pond and 

subsequently failed to make the needed repairs. Id. at 184–85. 

That these allegations of blatant, large-scale corruption 

endangering public health were protected, see id. at 185, did 

not clearly establish protection for Brickey’s statements. 

Moreover, as in Smith and Durham, we based our decision to deny 

qualified immunity in large part on “the lack of evidence 

supporting the [government’s] interest in disciplining [the 

employees] for their speech.” Id. at 189.
22

missing, and there were no improper charges to the account.7 The 

employee in Durham did not make such a concession to the 

employer before his termination. Hall could reasonably have 

believed that the inaccuracy of Brickey’s statements reduced 

their value and increased his own interests in suppressing 

future statements of the same kind. See Hustler Magazine, Inc. 

v. Falwell, 485 U.S. 46, 52 (1988) (“False statements of fact 

are particularly valueless; they interfere with the truthseeking function of the marketplace of ideas, and they cause 

damage to an individual’s reputation that cannot easily be 

repaired by counterspeech, however persuasive or effective.”); 

Piver v. Pender Cty. Bd. of Educ., 835 F.2d 1076, 1081 (4th Cir. 

1987) (noting an employer’s need for “protection from false 

 7 After oral argument, Brickey submitted a letter bringing 

to our attention the Supreme Court’s recent decision in 

Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016). See Fed. 

R. App. P. 28(j). In Heffernan, “a government official demoted 

an employee because the official believed, but incorrectly

believed, that the employee had supported a particular candidate 

for mayor.” 136 S. Ct. at 1416. The Court held that even 

though the employee had not supported the candidate—and 

therefore had not engaged in a constitutionally protected 

activity—he nevertheless was entitled to bring a First Amendment 

retaliation claim because “the government’s reason for demoting 

[an employee] is what counts.” Id. at 1418. According to 

Brickey, Heffernan establishes the broad rule that “a mistake of 

fact does not defeat a First Amendment retaliation claim,” even 

when an employee makes factually inaccurate claims regarding his 

employer. See Appellee’s 28(j) Letter. Heffernan lends Brickey

no support. Not only does the case assume without deciding the 

merits of the First Amendment claim, see id. at 1419, but more 

to the point, it simply does not address the issue of factually 

inaccurate employee speech.
23

accusations that may prove difficult to counter given the 

employee’s supposed access to inside information”). 

III.

We hold that it was not clearly established on the date of 

Brickey’s termination that his speech interests as a citizen 

outweighed Hall’s interests as an employer. Hall is therefore 

entitled to qualified immunity. Accordingly, we reverse the 

district court’s denial of summary judgment and remand for entry 

of an order consistent with this opinion.

REVERSED AND REMANDED