November 28, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:16-cv-03035-TWP-DLP - Tanya Walton Pratt, Judge.
Rovner, Hamilton, and Brennan, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
appeal deals with First Amendment protection for public
employees when they engage in speech that is not related or
tied to their work. Plaintiff Amy Harnishfeger authored a
short book, published under a pseudonym, about her time as a
phone-sex operator called Conversations with Monsters: 5
Chilling, Depraved and Deviant Phone Sex Conversations.
A month after publishing Conversations,
Harnishfeger began what was to have been a one-year stint
with the Indiana Army National Guard as a member of the
Volunteers in Service to America (VISTA) program, a federal
antipoverty program administered by the Corporation for
National and Community Service (CNCS).
when Harnishfeger's National Guard supervisor discovered
Conversations and identified Harnishfeger as its
author, she demanded that CNCS remove Harnishfeger from her
position. CNCS complied. Harnishfeger was unable to find
another suitable placement for the remainder of her VISTA
service, so, three months after she started, CNCS cut her
from the program entirely. Harnishfeger filed this suit
alleging violations of her rights under the First Amendment
and the Administrative Procedure Act (APA). The district
court granted the defendants' motions for summary
judgment. Harnishfeger v. United States, 2018
WL1532691 (S.D. Ind. March 29, 2018). Harnishfeger appeals.
reverse in part and affirm in part. Conversations with
Monsters is clearly protected speech, and on this
record, a jury could find that Harnishfeger's National
Guard supervisor, Lieutenant Colonel Lisa Kopczynski,
infringed her free-speech rights by removing her from her
placement because of it. We find no basis, however, for
holding CNCS or its employees liable, so we affirm the
judgment in favor of the federal defendants.
Conversations with Monsters
this appeal is from a grant of summary judgment, we state the
facts and the inferences from them in the light most
favorable to Harnishfeger. A little more than a decade ago,
Harnishfeger found herself unemployed and "disgruntled
with the thought of working for 'the man' any
longer/' as she wrote in the introduction to
Conversations. She decided to try phone-sex work,
but quickly discovered it was not the "flirty fun"
the phone-sex industry held it out to be. Harnishfeger was
horrified to hear what some of the callers would fantasize to
her about, including sexual abuse of children.
"vile, unrepentant, disgusting poor excuses for
men" (and one woman) are the "monsters" of
whom she wrote in Conversations. Harnishfeger did
not mince words: "if you're getting off at the
thought of hurting a child . . ., there is something clearly
unfit for this world in you and you need to end things once
and for all." Conversations recounted five of
Harnishfeger's most horrifying phone-sex calls and
meditated on the social role of phone-sex operators and on
her own experiences as one of them.
published Conversations with Monsters in May 2016 by
making it available for sale in electronic form on Amazon, an
online marketplace. On June 2, 2016 Harnishfeger announced
publication of her book on her page on Face-book, a social
networking website, with a link to the book's page on
Amazon. Harnishfeger's Facebook page was "set to
private," meaning that only Facebook users whom
Harnishfeger designated as her "friends" could view
what she posted there. Others viewing Harnishfeger's
Facebook page would see only very general information about
Conversations was published pseudonymously, only
Harnishfeger's Facebook "friends" could tie her
to it. Even they, however, would have had to do a bit of
hunting to find a reference to it unless they had seen the
publication announcement soon after it was posted. A Facebook
user's posts appear on her page chronologically from most
recent to least recent, so Harnishfeger's "quite
frequent" Facebook activity would have buried the
publication announcement under flurries of more recent posts
"as little as a week or two" after it was made.
after publishing Conversations with Monsters,
Harnishfeger was selected to participate in the VISTA
program. The VISTA program is a part of AmeriCorps, a federal
network of hundreds of programs across the nation. It is
sometimes called "the domestic Peace Corps." VISTA
members serve full-time for a year at non-profit
organizations or local government agencies to help them carry
out programs to alleviate poverty. AmeriCorps is administered
by CNCS, a federal agency that leads service, volunteering,
and grant-making efforts in the United States.
VISTA members apply directly to CNCS. If selected to
participate in the program, members apply separately to work
with a sponsoring organization pre-approved by CNCS. In
Indiana, for example, the twenty-three organizations approved
for VISTA sponsorship in 2016 included various charities, the
Indianapolis Public Schools, and the Indiana Army National
Guard. VISTA members/volunteers do not receive a salary, but
they do receive a number of benefits, including a small
monthly living allowance.
Harnishfeger's Short VISTA Career
had applied to and been accepted by CNCS as a VISTA volunteer
sponsored by the Indiana Army National Guard. She began her
VISTA service with the Guard's Family Program Office in
Indianapolis on June 24, 2016. Harnishfeger was responsible
for maintaining a database of information on service
providers to whom veterans and their families could turn for
help. Much of the underlying information had already been
gathered by the Guard's previous VISTA volunteer. If it
had not been, Harnishfeger would glean the information
herself from public sources. She would then enter it into the
database. The information was made publicly available on the
a dozen times over the course of three months-Harnishfeger
was unable to find an item of information she needed, such as
a service provider's telephone number or physical
address. In those cases, Harnishfeger contacted the service
provider directly, usually by telephone or email.
cases, Harnishfeger could find no contact information for the
service provider at all, so, using her own Face-book account,
she posted a comment to the provider's Face-book page
asking for the information she needed. For example, on August
26, she posted a message to the Facebook page of an
organization called PACT-Hoosier Hills asking for an office
email address. The comment identified Harnishfeger as a
post these comments requesting information, Harnish-feger was
not required to, and did not, designate the service providers
as her Facebook "friends." Because her Facebook
account was private, neither the provider's Facebook
account manager nor any other members of the public viewing
her comments were able to view Harnishfeger's posts to
her own Facebook page, including her earlier post about
her three months of VISTA service with the Guard, these dozen
contacts were the only occasions on which Harnishfeger
interacted with members of the public on the Guard's
behalf. Otherwise, she sat at a computer and entered data.
She performed her duties to the Guard's satisfaction.
Harnishfeger's Termination from VISTA
likely would have been the story of Harnishfeger's entire
year with the Guard. But then Noelle Butler,
Harnishfeger's direct supervisor, asked to become her
Facebook "friend." Harnishfeger felt she could not
reject this request from her quasi-employer. She accepted
Butler's "friend request" and thereby gave
Butler access to all of her "friends-only" Facebook
to late September, Butler explored Harnishfeger's
Facebook history deeply enough-through "many dozens, if
not hundreds" of posts-to come upon her post of June 2
announcing the publication of Conversations with
Monsters. Over her lunch break one day, "[o]ut of
curiosity about this bizarre title," Butler and another
Guard employee followed the Amazon link and purchased a copy
of the book. On September 27, Butler and the other employee
brought the book's contents to the attention of
Lieutenant Colonel Lisa Kopczynski, the Guard's State
Family Program Director.
September 28, Lt. Col. Kopczynski wrote a letter to Emily
Kubiszewski, a State Program Officer for CNCS who was
Harnishfeger's point of contact with the VISTA program.
Kopczynski requested that Harnishfeger be removed from the
VISTA placement or be terminated early for cause. Referring
to Conversations, Kopczynski explained that
"activities and conduct found" on
Harnishfeger's Facebook page did not "favorably
represent" the Guard's Family Program Office.
next day, September 29, Harnishf eger met with Butler and
Kopczynski. Kopczynski told her that Conversations with
Monsters was "really horrible," that she was
not presenting the Guard "in a favorable light,"
and that the Guard could not "have anyone find out
about" her authorship of Conversations.
Harnishfeger would therefore be removed from her VISTA
placement with the Guard.
same day, Harnishfeger received a letter from Louis Lopez,
Indiana State Program Director for CNCS, informing her that
she had been removed from her VISTA placement and put on
"Administrative Hold status" for up to 30 days,
effective immediately. A week or so later, in early October,
Kubiszewski told Harnishfeger that, although she would not be
readmitted to her placement with the Guard, if she
deactivated her Facebook account, she would be permitted to
seek another sponsor where she could complete her term of
VISTA service. Harnishfeger accordingly deactivated her
October 6, Kubiszewski sent Harnishfeger a letter spelling
out her prospects with the VISTA program. She gave
Harnishfeger a list of approved VISTA sponsors in Indiana and
nineteen days, until October 25, to find a new sponsor. If
Harnishfeger could not secure reassignment before October 25,
her VISTA participation would be terminated entirely,
effective October 26.
contacted five of the twenty-two potential sponsors available
to her. One responded, but it was too far from Indianapolis
to be feasible on Harnishfeger's limited means.
Harnishfeger thus failed to secure reassignment by the
October 25 deadline. On that day, she received a second
letter from Lopez informing her that her VISTA membership had
been finally terminated "for lack of suitable
two weeks, Harnishfeger sued Lopez, Kubiszewski, Kopczynski,
and Butler in their personal and official capacities, as well
as the United States government, for violating her rights
under the First and Fourteenth Amendments and the
Administrative Procedure Act, 5 U.S.C. § 706. The
district court had jurisdiction of the case under 28 U.S.C.
§ 1331 and § 1346.
personal-capacity defendants (except Butler, who was later
dismissed on Harnishfeger's motion) moved to dismiss the
complaint. The United States, as a named defendant and as the
real target of official-capacity claims against federal
actors, Hafer v. Melo,502 U.S. 21, 25-26 (1991),
moved separately to dismiss the complaint or in the
alternative for summary judgment. After converting the
defendants' motions to dismiss to motions for summary
judgment, see ...