In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3298

MILWAUKEE DEPUTY SHERIFF’S ASSOCIATION 

and MICHAEL SCHUH,

Plaintiffs-Appellants,

v.

DAVID A. CLARKE, JR.,

and EILEEN RICHARDS,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 06 C 900—Patricia J. Gorence, Magistrate Judge.

ARGUED FEBRUARY 13, 2009—DECIDED JULY 21, 2009

Before KANNE, ROVNER, and EVANS, Circuit Judges.

KANNE, Circuit Judge. The dispute in this case is

what one’s mother might have in mind when she

imparts the classic phrase, “Sticks and stones may break

my bones, but words will never hurt me.” Apparently,

Milwaukee County Sheriff David A. Clarke, Jr., did not
2 No. 08-3298

take this childhood lesson to heart. In the summer of 2005,

Sheriff Clarke posted on a roll-call bulletin board a quote

that at least one deputy, Michael Schuh, considered an

offensive challenge to his and his fellow officers’ courage.

Schuh fired back by publishing a two-sentence statement challenging Sheriff Clarke’s courage. Sheriff

Clarke, apparently afraid that words would hurt him,

quickly responded by reassigning Schuh to a newly

created mission in one of Milwaukee’s most crime-ridden

neighborhoods.

Deputy Schuh sued Sheriff Clarke, claiming that

Clarke retaliated against him for engaging in protected

speech in violation of the First Amendment. Schuh also

claimed that a recent change to the department’s Confidentiality Policy constituted an unlawful prior restraint.

We are sympathetic to Schuh’s position, and we consider Sheriff Clarke’s response against Schuh to be excessive. But there are limits to the First Amendment’s

protections when a public employee speaks, and because

we find that Schuh was speaking on a matter of purely

private concern, we agree with the district court that

summary judgment in Sheriff Clarke’s favor was appropriate.

I. BACKGROUND

In late May 2005, the Milwaukee County Deputy Sheriff’s

Association (“MDSA”), which represents deputies and

sergeants employed by the Milwaukee County Sheriff’s

Office, learned that Sheriff Clarke was directing on-duty

officers to escort him to and from the Milwaukee

airport and to conduct personalized patrols of his home.
No. 08-3298 3

An initial finding of fact proposed by Sheriff Clarke and

1

Captain Richards stated ambiguously that “[a] story or two

appeared in the Journal and also reference was made on

Channel 12.” (Def.’s Prop. Findings of Fact ¶ 115.) The defendants later withdrew this proposed finding as inaccurate,

citing a search of a legal database for Journal Sentinel articles

during the relevant time. Plaintiffs then disputed that there

were no stories in the Journal Sentinel, but they did not propose

an additional finding of fact, nor did they point the district

court to any such article.

Believing the conduct to be an improper personal use of

the County’s limited resources—particularly during a

time when money was tight—MDSA president Roy Felber

conveyed the Association’s concerns to a reporter from

the Milwaukee Journal Sentinel. The record is unclear

whether the newspaper published a story about the

Sheriff at that time.1

A few weeks later, Sheriff Clarke posted a quote on a

roll-call board at the department, visible to most Sheriff’s

Office employees. Sheriff Clarke had posted quotations

and inspirational messages in the past, but this one had a

notably confrontational tone:

If you are afraid or have lost your courage, you

may go home, otherwise you will ruin the morale

of others.

Deuteronomy, Chapter 20, Verse 8

One deputy who read Sheriff Clarke’s “inspirational”

post was Michael Schuh, an eighteen-year veteran officer

who was then working as a bailiff. Schuh took offense to

Sheriff Clarke’s message, believing the Sheriff was per-
4 No. 08-3298

sonally challenging his own—and his brother and sister

officers’—courage to perform their duties.

In response to the Sheriff’s quote, Schuh submitted a

two-sentence statement to the Star, an MDSA newsletter

dedicated to publishing news and updates within the

Sheriff’s Office. The Star regularly contained editorials

and commentary from deputies, including occasional

criticism of Sheriff Clarke. The MDSA distributes the

Star to approximately 700 current and retired MDSA

members, as well as private businesses, sponsors, and

the Milwaukee County Board of Supervisors, which

controls the Sheriff’s budget.

Deputy Schuh’s article mirrored Sheriff Clarke’s quote

from Deuteronomy, with a few additions that Moses

never uttered while outside of the Promised Land:

Union Member’s Response:

If you are afraid or you have lost your courage and

need two deputies and a sergeant to escort you

every time you fly in and out of the airport and

patrol deputies to drive by your house when

you’re out of town you should resign and go

home! Then you would lift the morale of this

whole department (a.k.a. office).

According to Deputy Schuh, he learned of Sheriff

Clarke’s use of officers to patrol his home by viewing an

order for that assignment on a roll-call board, and news

of the Sheriff’s personal escorts to the airport arrived

through the “grapevine.” Schuh testified that he construed the Sheriff’s post as a challenge to his courage, and
No. 08-3298 5

he wrote his response to “throw back at him what he

threw at us.” Schuh merely intended to make a sarcastic

remark about the Sheriff’s courage and did not believe

that Clarke was in fact a coward.

On Friday, July 22, 2005, the MDSA distributed the

edition of the Star containing Schuh’s article. Sheriff

Clarke, who did not know Deputy Schuh until this incident, was less than pleased by the statement. Later that

evening, Clarke called his second-in-command, Inspector

Kevin Carr, to discuss an appropriate response.

Clarke settled on reassigning Schuh to a new “Pilot

Project,” created just for Schuh, that required him to

patrol a portion of Milwaukee on foot, in full uniform, and

perform various tasks. One objective of the Project was to

improve relations with the community, which Schuh

would achieve by interviewing residents to determine

“what plagues the neighborhood the most” and to

“[c]onvince them that we’re the good guys/we’re on their

side and can’t succeed without their participation.”

Another of the stated objectives of the Project was

simple: “Visibility.” Clarke e-mailed the details of the

new assignment to Carr on Saturday, July 23, stating that

“We’ll identify the census tract. . . . And order him to

wear his uniform hat for greater visibility.”

Any uncertainty that Sheriff Clarke harbored about

where to send Deputy Schuh was resolved the next day,

Sunday, July 24, when the Journal Sentinel printed a map

of a crime-ridden section of Milwaukee’s north side. The

newspaper characterized the map as the “demographics

of a high killing area,” described the one-square-mile
6 No. 08-3298

neighborhood as “the City’s deadliest area,” and demarcated recent “homicides in Milwaukee’s ‘hot spot.’ ” Sheriff

Clarke acknowledged reading the article; the reader

can undoubtedly see where this tale is headed.

When Deputy Schuh arrived at work on Monday, July 25,

he received his plum new assignment. The location to

which Clarke assigned Schuh matched precisely the

boundaries of “the City’s deadliest area.” Schuh was told

that he must embark on this foot patrol campaign in full

uniform, without a partner, and without a squad car.

And unlike any other officer, he was required to ride a

Milwaukee County Transit bus to and from his new “beat.”

He received no advance notice of his reassignment, as

required by the parties’ collective bargaining agreement.

Not surprisingly, Schuh viewed the reassignment as

punishment for his statement against Sheriff Clarke.

County authorities and the local media quickly learned

of the Sheriff’s conduct. On July 27, two days after

Schuh’s reassignment, the Milwaukee County Board of

Supervisors, which oversees the Sheriff’s budget, issued

an open letter to the Sheriff. The Board expressed its

“disgust at the reassignment of Deputy Michael Schuh,”

criticized the Sheriff’s fiscal irresponsibility and “senseless

approach” to combating violence, and concluded:

“We urge you to reconsider the blatantly shortsighted,

irresponsible, and potentially dangerous move of placing

a Deputy as a one-man foot patrol in the streets.” Deputy

Schuh and the MDSA filed a federal lawsuit on the

same day, and the media’s focus then shifted to the

litigation.
No. 08-3298 7

On July 29, the Journal Sentinel published an editorial

cartoon depicting Sheriff Clarke (donning the obligatory

ten-gallon cowboy hat) pointing a gun labeled “retaliation”

at a picture of Deputy Schuh, only to have it backfire in

the Sheriff’s face, to which the Sheriff exclaims, “I guess

I showed him!”

Schuh served on foot patrol for over one month, from

July 25 to September 8, 2005. He was equipped with a

radio and stated that he was neither afraid nor

threatened while performing his duties. Schuh did not

lose any pay or benefits during the Pilot Project, and he

was eventually granted his request for a transfer.

On July 28, 2005, only three days after reassigning

Deputy Schuh, Sheriff Clarke issued Directive No. 13-05,

which formally revised the department’s Confidentiality

Policy. The original Confidentiality Policy was promulgated in 1984, and a revision had apparently been in the

works for some time prior to the controversy surrounding Deputy Schuh. Sheriff’s Office employees

proposed an updated policy in 2002, although the revision

was never implemented. In July 2005, Captain Eileen

Richards, at Sheriff Clarke’s direction, drafted the

revised policy, relying in large part on the unimplemented

2002 proposal.

The new policy, which remains in effect, differed only

slightly from the old. Rather than requiring employees to

“keep departmental business confidential,” employees

now must “keep official agency business confidential.”

Employees are prohibited from imparting such information “to anyone except those for whom it is intended, or
8 No. 08-3298

as directed by the Sheriff or his designee, or as ordered

by law.” The new rule also mandates that no one “shall

speak on behalf of the” Sheriff’s Office unless authorized

to do so.

After Sheriff Clarke issued the revised Confidentiality

Policy, Deputy Schuh spoke with the media on multiple

occasions regarding his reassignment. He was never

disciplined or threatened with discipline under the new

Policy. In fact, MDSA president Roy Felber was unaware

of any employee disciplined under either version of the

Policy.

The parties agreed to dismiss, without prejudice, the

federal lawsuit that Deputy Schuh and the MDSA filed on

July 27, 2005, and on October 7, the plaintiffs filed the

present suit in Milwaukee County Circuit Court. Schuh

and the MDSA alleged violations of Wisconsin state

law and, pursuant to 42 U.S.C. § 1983, that (1) the defendants retaliated against Schuh in violation of his

First Amendment rights to free speech and association;

and (2) the Department’s new Confidentiality Policy

constituted an impermissible prior restraint. The defendants removed the action to the United States District

Court for the Eastern District of Wisconsin on August 17,

2006.

The parties filed cross-motions for summary judgment, and the district court ruled in favor of Sheriff Clarke

and Captain Richards on all federal claims. The court

declined to exercise supplemental jurisdiction over the

state claims and dismissed the action. Deputy Schuh and

the MDSA now appeal, and for the reasons that follow, we
No. 08-3298 9

agree that summary judgment in defendants’ favor was

proper.

II. ANALYSIS

Our guiding principles for reviewing a grant of summary judgment are familiar. We review the district

court’s decision de novo and must reverse if we find that

a reasonable jury could have rendered a verdict in favor

of the MDSA and Deputy Schuh. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986). The parties filed crossmotions for summary judgment, and we construe the

evidence in favor of the MDSA and Schuh, the parties

against whom the motion under consideration was

made. See Samuelson v. LaPorte Cmty. Sch. Corp., 526

F.3d 1046, 1051 (7th Cir. 2008).

The MDSA and Deputy Schuh raise two issues on

appeal: (1) whether Sheriff Clarke violated Schuh’s First

Amendment rights by reassigning him to the new Pilot

Program; and (2) whether the revised Confidentiality

Policy constituted an impermissible prior restraint.

A. First Amendment Retaliation

The First Amendment, applicable to the states through

the Fourteenth Amendment, prohibits a public employer

from retaliating against an employee for engaging in

protected speech. See Callahan v. Fermon, 526 F.3d 1040,

1043-44 (7th Cir. 2008). We apply a three-step analysis to

a First Amendment retaliation claim under 42 U.S.C.
10 No. 08-3298

§ 1983: (1) the employee’s speech must be constitutionally

protected; (2) the employer’s action must be motivated

by the constitutionally protected speech; and (3) if the

action was retaliatory, we consider whether the employer has demonstrated that it would have taken the

same action irrespective of the employee’s speech.

Houskins v. Sheahan, 549 F.3d 480, 489-90 (7th Cir. 2008);

Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999).

This case turns on whether Deputy Schuh’s speech was

constitutionally protected, for there is no question that

Sheriff Clarke retaliated against Schuh for publishing

his statement in the Star. Nor can Clarke claim that he

would have taken the same action irrespective of Schuh’s

speech; he did not even know Schuh before the article

appeared. The record is crystal clear that Clarke

responded to Schuh’s remarks by reassigning him to a

dangerous neighborhood on a newly created mission

of questionable public utility. Sheriff Clarke hand-tailored

the task for Schuh alone, wanted him to be overtly visible,

and ordered him to take the bus to his new “beat.” In our

view, Sheriff Clarke’s response was a childish and potentially harmful reprisal for a two-sentence statement, and

we do not condone his conduct. Apparently our

thoughts are consistent with those of the Milwaukee

County Board of Supervisors, the media, and the general

public. But Sheriff Clarke’s conduct, as irresponsible as

it may have been, violated Deputy Schuh’s First Amendment rights only if the speech was constitutionally protected, and it is upon that question that we must focus.

The government may not “condition public employment on a basis that infringes the employee’s constitution-
No. 08-3298 11

Sheriff Clarke was also the defendant in Fuerst.

2

And a wise concession it was. The only connections between 3

Schuh’s speech and his employment were that Sheriff Clarke

(continued...)

ally protected interest in freedom of expression,” Connick

v. Myers, 461 U.S. 138, 142 (1983), but a public employee’s

right to free speech is not absolute, City of San Diego

v. Roe, 543 U.S. 77, 80 (2004) (“[A] governmental employer may impose certain restraints on the speech of its

employees, restraints that would be unconstitutional if

applied to the general public.”); Fuerst v. Clarke, 454

F.3d 770, 774 (7th Cir. 2006). Our goal is “to arrive at a

2

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 promoting

the efficiency of the public services it performs through

its employees.” Pickering v. Bd. of Educ. of Twp. High Sch.

Dist. 205, 391 U.S. 563, 568 (1968).

To receive First Amendment protection, therefore, a

public employee must speak “as a citizen on a matter of

public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417

(2006). If he is not so speaking, the employee has no

cause of action for First Amendment retaliation, and we

need not balance the employee’s interests against the

government’s interest in promoting effective and efficient

public services. Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir.

2007). Sheriff Clarke disputed below that Schuh was

speaking “as a citizen” by writing his article for the Star,

but he has conceded this point on appeal.3
12 No. 08-3298

(...continued) 3

was his superior and that he learned of Clarke’s conduct

through his position as a deputy. Schuh drafted his statement

while off-duty, he reported the conduct externally, and no

evidence indicates that the speech was “pursuant to” or “owe[d]

its existence to” his official duties. Garcetti, 547 U.S. at 421.

Consequently, the district court correctly found that Schuh

was speaking as a citizen.

Because Deputy Schuh was speaking as a citizen, we

turn to the central question: whether his statement was “on

a matter of public concern.” To determine this question

of law, we must consider “the content, form, and context of

a given statement, as revealed by the whole record.”

Connick, 461 U.S. at 147-48. Although no factor is

singularly dispositive, we have indicated that the content

of the speech is the most important of the three. See

Chaklos v. Stevens, 560 F.3d 705, 714 (7th Cir. 2009); Cliff v.

Bd. of Sch. Comm’rs, 42 F.3d 403, 409 (7th Cir. 1994).

When examining the “context” of a public employee’s

speech, the employee’s motive for speaking is a relevant

consideration. Cliff, 42 F.3d at 410; see also Chaklos, 560

F.3d at 714; Miller v. Jones, 444 F.3d 929, 937 (7th Cir.

2006). After all, “[t]he First Amendment ‘was fashioned

to assure unfettered interchange of ideas for the

bringing about of political and social changes desired by

the people.’ ” Connick, 461 U.S. at 145 (quoting Roth v.

United States, 354 U.S. 476, 484 (1957)). A public employee,

familiar with an agency’s use of public resources, may

be in the best position to raise issues vital to efficient,

successful, and legal governance. As the Supreme Court
No. 08-3298 13

has noted, “public employees are often the members of

the community who are likely to have informed opinions

as to the operations of their public employers . . . . Were

they not able to speak on these matters, the community

would be deprived of informed opinions on important

public issues.” Roe, 543 U.S. at 82. At its core, then, the

First Amendment should protect speech that intends to

raise such issues.

But a public employee’s motive for speaking is not

necessarily a dispositive factor, and we have cautioned

against creating “an absolute litmus test because [motive]

does not supplant content in terms of overall importance

to the public concern inquiry.” Cliff, 42 F.3d at 410; see

also Chaklos, 560 F.3d at 714; Miller, 444 F.3d at 937. Consequently, that a public employee speaks out in part for

personal reasons will not necessarily remove the speech

from the scope of public concern. See Phelan v. Cook County,

463 F.3d 773, 791 (7th Cir. 2006); Gustafson v. Jones,

290 F.3d 895, 908 (7th Cir. 2002); Zorzi v. County of Putnam,

30 F.3d 885, 897 (7th Cir. 1994) (“ ‘[T]he mere fact that an

employer’s statement is an outgrowth of his personal

dispute does not prevent some aspect of it from touching

upon matters of public concern . . . .’ ” (quoting Berg

v. Hunter, 854 F.2d 238, 242 (7th Cir. 1988))).

The motive of a statement, rather, “matters to the

extent that even speech on a subject that would otherwise be of interest to the public will not be protected if

the expression addresses only the personal effect upon

the employee, or if the only point of the speech was to

further some purely private interest.” Gustafson, 290
14 No. 08-3298

F.3d at 908 (citation and quotations omitted); see also

Button v. Kibby-Brown, 146 F.3d 526, 529-30 (7th Cir. 1998)

(“[S]peech lacks the public concern element if it

concerns a subject of public interest but the expression

addresses only the personal effect upon the employee.”

(quotations omitted)). We must analyze the extent that

an employee’s speech was made for personal reasons in

conjunction with the extent to which the content relates

to a matter of public concern. See Metzger v. DaRosa, 367

F.3d 699, 702 (7th Cir. 2004) (“ ‘[W]here considerations of

motive and context indicate that an employee’s speech

raised a topic of general societal interest merely for personal reasons rather than a desire to air the merits of

the issue, . . . these factors militate against the conclusion

that the employee’s speech is entitled to First Amendment protection.’ ” (quoting Campbell v. Towse, 99 F.3d

820, 827 (7th Cir. 1996))).

With these considerations in mind, we turn to Deputy

Schuh’s statement, which the district court determined

to be a purely personal response to Sheriff Clarke’s Deuteronomy quote. First, the form of Schuh’s statement weighs

in favor of constitutional protection; the Star is a labor

organization newsletter that is distributed beyond Department employees and dedicated to, inter alia, political

commentary. The effect of the content and context of

Schuh’s statement, however, is not as clear.

Regarding the content of Schuh’s statement, the district

court simply stated “Deputy Schuh’s article questioned

Sheriff Clarke’s personal use of department resources.”

We interpret this to mean that the court found the
No. 08-3298 15

 Perhaps a county sheriff’s lack of courage, in and of itself, 4

may qualify as a matter of public concern, although the MDSA

and Schuh have not raised this argument. We do not doubt

that the public would feel safer with courageous lawmen,

conjuring up visions of Wyatt Earp patrolling Tombstone

and prevailing in the shootout at the O.K. Corral, and Elliot

Ness leading his band of “Untouchables” in the quest to bring

down Al Capone. But given the ambiguity of Schuh’s statement

(continued...)

content to be related to a matter of public interest. Indeed,

speech protesting government waste is of legitimate

interest to the general public. See Chaklos, 560 F.3d at 713.

But we are less certain that Schuh’s article actually spoke

to or protested government waste. Again, Deputy Schuh

issued the following statement:

If you are afraid or you have lost your courage and

need two deputies and a sergeant to escort you

every time you fly in and out of the airport and

patrol deputies to drive by your house when

you’re out of town you should resign and go

home! Then you would lift the morale of this

whole department (a.k.a. office).

A simple reading of Deputy Schuh’s comment indicates

that he believed that the Sheriff’s need for additional

security meant that the Sheriff had “lost [his] courage.”

Schuh did not comment directly on the department’s

waste of taxpayer dollars or the impact of the Sheriff’s

conduct on the availability of officers for more legitimate

purposes; our reading of the statement suggests that he

focused instead on the Sheriff’s lack of courage. Although 4
16 No. 08-3298

(...continued) 4

and considering the remaining analysis, we need not address

this question.

we ultimately agree that the content of Schuh’s statement “related to” a matter of public interest, we do not

examine the speech’s content in a vacuum, nor do we

rely solely on the express language. We comment on the

content of Schuh’s statement merely to note that any

reference to government waste was indirect and

tangential, making the context a more important consideration when determining whether the speech was on

a matter of public concern.

After examining the content and context of Schuh’s

statement, we find that Schuh was speaking on a matter

of purely private concern. The context of the speech,

which includes the circumstances surrounding its publication and Schuh’s motive, indicates that Deputy Schuh

responded to what he considered to be a personal challenge to his courage by issuing his own personal challenge to Sheriff Clarke’s courage. Sheriff Clarke posted

his initial challenge where it would be widely viewed by

his subordinates; Deputy Schuh published his retort in

a similar forum—an MDSA newsletter distributed to

current and retired officers. Although the plaintiffs

attempt to link Schuh’s article to the controversy that

prompted the MDSA to approach the media, nothing

suggests that Deputy Schuh intended to bring to light the

Sheriff’s abuse of county resources, to provoke public

discussion about Clarke’s conduct, or to air the merits of
No. 08-3298 17

The plaintiffs assert that the district court overemphasized this 5

component of Schuh’s testimony, but Deputy Schuh repeated

this phrase three separate times during his deposition. When

asked directly why he wrote the article, Schuh answered, after

an objection by his counsel that the question was asked and

answered, “I wrote the article to throw back at him what he

threw at us. That’s my, was—the whole purpose of the article.”

Further, the plaintiffs did not dispute the defendant’s proposed findings of fact on this issue, nor did they propose

any additional finding of fact regarding Deputy Schuh’s

motive for writing the article.

any related dispute. And most importantly, the language

he used in the two-sentence statement does nothing to

further such a purpose. Instead, although Schuh’s speech

may have been of general public interest, it focused solely

on “the personal effect upon” Schuh, and “the only

point of the speech was to further some purely private

interest.” Gustafson, 290 F.3d at 908 (quotations omitted);

see also Metzger, 367 F.3d at 702; Kokkinis, 185 F.3d at 844.

Deputy Schuh’s own testimony reinforces this conclusion. The undisputed facts, based on Schuh’s deposition,

state the following: Schuh believed that Sheriff Clarke’s

“inspirational message” was challenging his courage to

perform his job; Schuh wrote his article to question

Clarke’s courage in return; Schuh was responding to the

quote on the roll-call board and intended to make a

sarcastic comment about Clarke; and Schuh wrote the

article to “throw back at him what he threw at us.” We 5

can find no evidence in the record that supports plaintiffs’ contention that Deputy Schuh had anything but a
18 No. 08-3298

The plaintiffs point to two isolated comments that suggest a 6

broader purpose for Schuh’s comments. Schuh stated that he

disagreed with using deputies to patrol Clarke’s residence

“[b]ecause I don’t think it serves any purpose.” And he later

stated that he “might have” used some information from a

newspaper in writing his article. Plaintiffs did not highlight

these comments before the district court, but even if they had,

they do not suggest that Schuh intended to raise a matter of

public concern, and the undisputed facts state Schuh’s

clear purpose for submitting his article.

personal motive for making his statement. Cf. Chaklos, 560

6

F.3d at 713-14 (holding that speech addressing a private

interest within a letter containing matters of public

interest was protected and noting that “we have emphasized that speech of public importance is only transformed into a matter of private concern when it is motivated solely by the speaker’s personal interests” (quotations

omitted)).

Our case law supports our determination. The parties

and the district court each discussed our decision in

Kokkinis, and we find that Deputy Schuh’s speech

here represents an even clearer example of the principles

we explained in that case. In Kokkinis, the plaintiff, a

police officer, appeared on a television news program

that was reporting on a fellow officer’s allegation of

sex discrimination by the police chief. 185 F.3d at 842.

Kokkinis commented generally on the police chief’s

“vindictiveness” and claimed that he made many officers’ lives miserable. Id. Kokkinis was reprimanded

and filed suit, and we held that his speech was unpro-
No. 08-3298 19

tected by the First Amendment because, although sex

discrimination in the police department is undoubtedly a

matter of public concern, he “had a limited interest in

speaking on [that] subject,” he knew little about the

allegations, and he sought “simply to further his own

goal of expressing his displeasure with the Chief’s policies.” Id. at 844.

We recently reached the opposite result in Chaklos,

finding speech by government employees to be protected

because it raised matters of both private and public concern. 560 F.3d at 713-14. The plaintiffs in Chaklos were

employed by the Illinois State Police to train forensic

scientists; they also owned an independent forensic

services company. Id. at 709. When the employees discovered that the police awarded a contract for forensic

training without a bidding process, they wrote a letter

protesting the contract and stating that their company

could provide “substantial savings to the State of Illinois.”

Id. We held that even though the employees clearly had a

personal motive for drafting the letter—to procure the

business for themselves—they nevertheless also

intended to highlight that Illinois was wasting money

by employing a non-competitive bid process. Id. at 713-14.

The employees’ purpose in speaking was mixed, the

letter’s content contained matters of public interest, and

the speech deserved protection under the First Amendment. Id. at 714.

These two cases illuminate the boundary we draw to

determine whether speech addresses a matter of public

concern, and we find that Deputy Schuh’s article falls
20 No. 08-3298

on the Kokkinis side of the fence. Unlike the letter in

Chaklos, which contained a matter of public interest

because it stated that Illinois was wasting taxpayer

money, Schuh’s article did not directly question Clarke’s

fiscal responsibility or raise the public ramifications of

Clarke’s conduct. Although a reader may interpret the

statement this way, the ambiguity in the content makes

the context of the speech more important. The record

reveals that Schuh made his statement out of a purely

personal interest, whereas the plaintiffs in Chaklos had

a mixed motive for writing their letter. And like the

plaintiff in Kokkinis, who employed a much more public

platform for his comments, Schuh’s article in the Star

“was not designed to address a matter of public concern,”

185 F.3d at 844, and the content of his speech does

nothing to overcome that fact.

The MDSA and Schuh also cite the public controversy

surrounding Sheriff Clarke to support their argument that

Schuh’s speech merits First Amendment protection,

whereas the defendants note that there is no evidence

of any media story related to Clarke’s misuse of deputies.

We agree with the MDSA and Schuh on one point:

whether the Journal Sentinel published an article is not

dispositive of whether Schuh was speaking on a matter

of public concern. The pivotal question is not the actual

presence of public controversy, but whether the speech

might inform the public debate on an issue of legitimate

interest to the public at the time it is published. Cf. Zorzi,

30 F.3d at 897 n.11 (noting that media coverage is not

dispositive of public concern and stating that “[i]t is

important not to equate the public’s curiosity about a
No. 08-3298 21

matter with the matter having societal ramifications”

(quotations omitted)).

In this case, however, this distinction does not alter our

analysis. Although Sheriff Clarke’s retaliation against

Schuh garnered a great deal of media attention, we

must still evaluate the full content, context, and form

of Schuh’s speech and determine whether it was on a

matter of public concern at the time it was published.

In the end, Schuh cannot avoid that he wrote his

short statement, which on its face merely questioned

Sheriff Clarke’s courage, for purely personal reasons. The

plaintiffs argue that the district court “myopically” neglected the full context of Schuh’s speech, particularly

because it did not connect his article to the MDSA’s

initial meeting with the press. Had it done so, the plaintiffs claim, the “point” of the speech would have proven

largely immaterial. We do not see how this is so. First, the

plaintiffs have not produced evidence, apart from

timing, that Sheriff Clarke’s Deuteronomy posting was

in response to the MDSA’s meeting with the press. But

more importantly, adding this to the context does not

alter the outcome. Schuh’s reference to the Sheriff’s

misuse of deputies bolstered his challenge to the Sheriff’s

courage by providing examples of his purported cowardice.

We do not intend to establish the speaker’s motive as the

determinative factor in a First Amendment retaliation

claim. But where, as here, the public component of Schuh’s

speech was unstated, indirect, and tangential to his

primary purpose, which was a purely personal challenge
22 No. 08-3298

to the Sheriff, we cannot extend First Amendment protection. We reach this conclusion after carefully considering the entire content, context, and form of Schuh’s

article. Because we find that Deputy Schuh did not

speak on a matter of public concern, we need not proceed to the Pickering balancing test, and summary judgment in the defendant’s favor was appropriate. See

Metzger, 367 F.3d at 703.

B. Prior Restraint

We next consider whether Directive No. 13-05, the

revised Confidentiality Policy issued by the Sheriff’s

Office, is an unconstitutional prior restraint. The MDSA

and Deputy Schuh argue that the revised Policy, issued

the day after they filed suit, was a direct response to

the media coverage of Schuh’s reassignment and

prevents an employee from divulging “official agency

business” to anyone, including when speaking as a

citizen on matters of public concern. The district court

determined that the Policy was not unlawful, and we

review this decision of law de novo.

The predecessor to Directive 13-05 stated that “Members

shall keep departmental business confidential” and

prohibited discussing official information unless directed

by a supervisor or as required by law. The relevant

portion of the new policy reads:

It is the policy of the Milwaukee County Sheriff’s

Office (MCSO) that all Sheriff’s Office employees

shall keep official agency business confidential.
No. 08-3298 23

They shall not impart it to anyone except those

for whom it is intended, or as directed by the

Sheriff or his designee, or as ordered by law. No

member of the agency shall speak on behalf of the

organization unless authorized to do so by the

Sheriff or his designee.

The primary changes to the policy are that “departmental

business” became “official agency business,” and the

Sheriff, rather than an employee’s supervisory officer,

now possesses the authority to direct the dissemination

of such information.

Before reaching the merits of the plaintiffs’ argument,

we first note that they may raise a facial challenge to

Directive 13-05 even though neither Deputy Schuh nor

any other departmental employee has ever been disciplined for violating it or its predecessor. See Wernsing v.

Thompson, 423 F.3d 732, 743-44 (7th Cir. 2005) (collecting

cases and noting that “government employees whose

speech is limited by an internal policy or a pre-clearance

directive such as [defendant’s] need not seek permission

to speak or violate the directive in order to challenge the

directive in court”). Thus we address the plaintiffs’ claim.

The term “prior restraint” describes “ ‘administrative

and judicial orders forbidding certain communications

when issued in advance of the time that such communications are to occur.’ ” Samuelson, 526 F.3d at 1051 (quoting

Alexander v. United States, 509 U.S. 544, 550 (1993)). The

Supreme Court has explained how we are to determine

whether a rule constitutes a prior restraint, see Se. Promo-
24 No. 08-3298

tions, Ltd. v. Conrad, 420 U.S. 546, 554 (1975), but before

any restriction may be unconstitutional, it must apply to

speech protected by the First Amendment, Samuelson,

526 F.3d at 1052 (citing United States v. Nat’l Treasury

Employees Union, 513 U.S. 454, 465-66 (1995)).

As we mentioned above, a public employee does not

have a protected interest in speech unless he is speaking

as a citizen on a matter of public concern. Garcetti, 547 U.S.

at 421; Treasury Employees, 513 U.S. at 466. Whereas our

earlier discussion concerned whether speech was “on a

matter of public concern,” we now examine the “citizen”

component of this requirement. Public employees who

speak pursuant to their official duties “are not speaking

as citizens for First Amendment purposes.” Garcetti,

547 U.S. at 421. The Supreme Court explained that such

speech “owes its existence to a public employee’s professional responsibilities,” and restricting it “simply reflects

the exercise of employer control over what the employer

itself has commissioned or created.” Id. at 421-22. The

Court did not articulate a framework for determining

whether particular speech arose from one’s professional

duties, but it stated that the inquiry should be “a practical

one” not confined to formal job descriptions. Id. at 424-25.

Therefore, before balancing the parties’ pertinent interests according to the Supreme Court’s opinion in Treasury

Employees, we must first ask whether Directive 13-05

regulates solely unprotected speech, i.e., that which owes

its existence to an employee’s duties as a Milwaukee

County police officer. See Crue v. Aiken, 370 F.3d 668, 678-79

(7th Cir. 2004) (explaining the Treasury Employees
No. 08-3298 25

balancing test and in what cases it applies). The district

court answered this question affirmatively and determined that the Policy was not an unlawful prior restraint.

The plaintiffs, however, assert that the Policy

impermissibly prevents Department employees from

relaying any information “related to” official agency

business, which extends beyond speech made “pursuant

to” or that “owed its existence to” an employee’s job

duties.

Without question, and as the plaintiffs acknowledge,

Directive 13-05’s prohibition on employee speech “on

behalf of the organization” regulates unprotected speech

owing its existence to the employee’s professional duties.

See Garcetti, 547 U.S. at 421; Callahan, 526 F.3d at 1044.

The real dispute in this case is the extent to which the

requirement to “keep official agency business confidential” encompasses speech by an employee as a citizen.

We find that Directive 13-05 is not an unlawful prior

restraint because it does not apply to speech protected

by the First Amendment. The MDSA and Schuh argue

for an expansive interpretation of the phrase “official

agency business.” They suggest that Directive 13-05

precludes any speech “related to” such business, even

though those words do not appear in the Policy itself.

We do not read the Policy so broadly. Rather, we find that

it regulates only speech “grounded in the public employee’s professional duties.” Samuelson, 526 F.3d at 1052.

The terminology of the Policy, which makes no

reference to speech as a citizen, is central to our determination. The Policy covers only “official agency busi-
26 No. 08-3298

ness,” a phrase containing three separate components.

First, the regulated information must be “business,” rather

than merely a topic of general interest. Of course, a

police department’s business may be of public interest,

but the term at least removes anything tangentially

“related to” the department from its coverage. Second, the

term “agency” suggests that the business must be generated by or pertain to the Milwaukee County Sheriff’s

Office. Third, and in our view most importantly, the

regulated information must be “official,” which typically

means either “[o]f or relating to an office or position of

trust or authority,” or “[a]uthorized or approved by a

proper authority.” Black’s Law Dictionary 1119 (8th ed.

2004). By requiring the regulated speech to be “official,”

the Policy properly restricts only speech grounded in or

owing its existence to the employees’ job duties. We

trust that the Milwaukee County Sheriff’s Office will

enforce its policy accordingly, as it has done for approximately twenty-nine years; if it does not, it potentially

exposes itself to an as-applied challenge to the Policy

or a claim for First Amendment retaliation under the

Connick-Pickering line of cases described above.

To support their claim that Directive 13-05 was

intended to squelch speech protected by the First Amendment, the MDSA and Schuh also emphasize that the

Directive was issued the day after they filed their lawsuit. We do not deny that this timing is somewhat suspicious. But according to the record, the Sheriff’s Office had

been considering revisions for a number of years, and no

employee has been disciplined under the new or the old
No. 08-3298 27

policy. More importantly, the timing does not alter that we

must analyze the Policy as a whole and determine whether

it regulates protected speech. If the revision was a kneejerk response to the controversy surrounding Deputy

Schuh, it certainly did not stifle criticism from officers,

employees, and Schuh regarding the Sheriff’s misuse of his

authority. Department employees have levied countless

criticisms against the Sheriff regarding this controversy

and others, both before and after the revision, resulting in

no discipline under either version of the Policy.

Last, we are not convinced that vesting the authority

to permit dissemination of “official agency business” in

the hands of Sheriff Clarke or his designee renders the

new Policy unlawful. This change alters from whom an

employee must seek permission to speak, but it does not

expand the scope of the speech governed by the new Policy.

The Sheriff is still confined by the Policy and may not

restrict constitutionally protected speech made by an

employee speaking as a citizen. We are confident that both

the purpose and language of Directive 13-05 encompass

only speech that “owes its existence to a public employee’s

professional responsibilities.” Garcetti, 547 U.S. at 421.

Because the revised Confidentiality Policy regulates only

speech not subject to First Amendment protection, the

Policy is not an unlawful prior restraint, see Samuelson,

526 F.3d at 1052, and summary judgment in the defendants’ favor was appropriate.
28 No. 08-3298

III. CONCLUSION

We find that Deputy Schuh’s statement was not on a

matter of public concern, and he cannot sustain his

First Amendment retaliation claims. We also find that

Directive 13-05 is not an unlawful prior restraint. For

these reasons, summary judgment was appropriate for

all of the plaintiffs’ federal claims, and we AFFIRM.

7-21-09