Judith Caron is a cigarette smoker. From 1980 until she was fired in 1988 she was employed as a social worker in the Attleboro office of the Department of Public Welfare (department). Caron's smoking in the workplace was a source of controversy with her supervisors. Because of the controversy and the attention it attracted she was invited in late 1987 to appear on a national television program 60 Minutes, and in early 1988 on two local television talk shows. Soon after those appearances ostensibly on grounds of insubordination her employment was terminated. *fn2

Caron filed a complaint containing numerous counts against three individuals two of whom were her supervisors. Ruling on a motion filed by the defendants a Superior Court Justice dismissed several counts of the complaint and granted summary judgment for the defendants on the others. Only one issue is raised on appeal: whether summary judgment was properly granted in favor of Caron's two supervisors named as defendants individually on her claim under the Federal (42 U.S.C. SEC. 1983 [1988]) and State (G. L. c. 12 SEC. (s) 11H and 11I [1988 ed.]) Civil Rights Acts *fn3 that by bringing about Caron's discharge the defendants interfered with her right to free speech under the First Amendment to the Federal Constitution. It is Caron's contention that the defendants' allegation which resulted in her discharge that she was insubordinate in insisting on tape recording a meeting was a pretext. The motion Court ruled that whatever the real reason for Caron's discharge because she had failed to show that she had a clearly established constitutional right to speak on the office's smoking policy the defendants were entitled to a defense of qualified immunity from liability and judgment was entered in their favor.

The Court correctly set forth the scope of immunity protecting the defendants sued as individuals for discretionary acts they performed as government employees. Caron was obliged to show that the defendants deprived her of a "clearly established" right that is one not in the abstract but based upon particular circumstances of which a reasonable person would have been aware at the time. See Harlow v. Fitzgerald 457 U.S.800 818 73 L. Ed. 2d 396 102 S. Ct.2727 (1982); Anderson v. Creighton 483U.S. 635 638-639 97 L. Ed. 2d 523 107 S. Ct.3034 (1987); Duarte v. Healy 405 Mass. 43 46-47 537 N.E.2d 1230 (1989). To overcome a claim of immunity it is not necessary for Court to have previously considered a particular situation identical to the one faced by the government official. See Anderson v. Creighton 483 U.S. at 639-640; Hall v. Ochs 817 F.2d 920 924-925 (1st Cir.1987); Dobos v. Driscoll 404 Mass. 634 646-647 537 N.E.2d 558 cert. denied sub nom. Kehoe v. Dobos 493 U.S.850 107 L. Ed. 2d 107 110 S. Ct.149 (1989). "It is enough rather that there existed case law sufficient to clearly establish that if a justice were presented with such a situation Justice would find that the plaintiff's rights were violated." Hall v. Ochs 817 F.2d at 925 (emphasis in original). Consistent with the reasons underlying the qualified immunity defense it was important that the immunity issue be resolved at the earliest possible stage of litigation preferably before any discovery on a motion to dismiss or for summary judgment. See Harlow v. Fitzerald 457 U.S at 818; Anderson v. Creighton 483.U.S. at 646 n.6; Mitchell v. Forsyth 472 U.S.511 526-527 86 L. Ed. 2d 411 105 S. Ct.2806 (1985).

To determine whether the defendants may have violated clearly established law in this case we are required to examine Caron's claim on the basis of the factual material presented to the motion Court that she was discharged for exercising her First Amendment rights. *fn4 Some but not all of a public employee's speech is constitutionally protected. To establish that her discharge was in violation of her First Amendment rights Caron had to show among other things *fn5 that her speech addressed a matter of public concern and not merely her personal interests or internal office grievances. See Connick v. Myers 461 U.S.138 146-147 75 L. Ed. 2d 708 103 S. Ct.1684 (1983); Smith v. Commissioner of Mental Retardation 409 Mass. 545 552 567 N.E.2d 924 (1991). The question whether particular speech touches upon a matter of public concern is one of law and must be answered in each case on the basis of the "content form and context" of the speech as revealed by the whole record. Connick v. Myers 461 U.S. at 147-148. The reported cases form a spectrum falling on both sides of the line. For example compare Jett v. Dallas Indep. Sch. Dist. 798 F.2d 748 757-758 (5th Cir.1986); Belk v. Minocqua 858 F.2d 1258 1263-1264 (7th Cir. 1988); Boger v. Wayne County 950 F.2d 316 322-323 (6th Cir.1991) with Zaky v. United States Veterans Admn. 793 F.2d 832 838-839 (7th Cir.1986); Koch v. Hutchinson 847 F.2d 1436 1443-1449 (10^th Cir.1988); Vukadinovich v. Bartels 853 F.2d 1387 1391 (7th Cir.1988).

It is clear from the affidavits filed by all parties that for some time before her television appearances Caron had felt aggrieved by her treatment as a smoker in her particular workplace. The rights of smokers in the department's Attleboro office had been the subject of litigation and Caron had intervened as a party. Subsequently the department instituted a State-wide policy concerning smoking which restricted her rights. Caron stated in her affidavit that she "complained to anyone who would listen" about the office policy that she "became increasingly vocal about [her] treatment as a smoker and that she began to attract media notoriety." She stated further that in June of 1987 60 Minutes became interested in doing a feature on her and she appeared on the program. In the fall of 1987 according to her affidavit she was "invited to appear on two Boston television talk programs on smokers' rights."

The affidavits informed the motion Court adequately of the context of Caron's speech. Caron's televised remarks were made in the context of a long-standing internal office dispute. As to the content of the speech Caron stated only that she was "invited" to appear on television programs on smokers' rights.

Some knowledge of content is important in determining whether a person's speech relates to a matter of public concern. It would not have been enough that Caron's comments related to the department an important public agency as there is no indication that the comments suggested that the agency was not properly performing its responsibilities to the public compare Roth v. Veteran's Admn. 856 F.2d 1401 1406 (9th Cir.1988) or that the agency was deficient in a matter about which the public might be concerned such as engaging in a pattern of unlawful discrimination compare Matulin v. Lodi 862 F.2d 609 612-613 (6th Cir.1988). On the other hand the issue of smoking in public places has been the subject of legislation in Massachusetts see G. L. c. 270 SEC.(s) 21 and 22 and there certainly has been considerable public debate about the dangers of smoking both to smokers and others in their immediate vicinity and the extent to which smoking should be tolerated in public places. Caron would not be disqualified from First Amendment protection merely because she had a personal stake in the controversy. The question is whether her television appearances were related to both her personal concerns and the broader issue of smoking policies in general.

We think her statement that she was "invited" to appear on programs on smokers' rights, particularly in light of the form of those appearances is sufficient to create an inference that she was addressing more than her own personal concerns. As to the forum in which Caron expressed herself we think it significant that she was solicited on three separate occasions by producers of television programs one a well-known national program which presents issues of interest to the public. The invitations were all made in connection with the issue of the rights of smokers in the workplace. It seems most unlikely that her repeated appearances on such television programs would have been related exclusively to her personal grievances. See Rode v. Dellarciprete 845 F.2d 1195 1202 (3d Cir.1988); Moore v. Kilgore 877 F.2d 364 371-372 (5th Cir.1989); Broderick v. Roache 767 F. Supp.20 24-25 (D. Mass. 1991). *fn6 This is so even though we recognize that the fact that Caron's views or her situation happened to attract media attention may not be enough by itself to qualify her remarks as expressions on a matter of public interest. See Connick v. Myers 461 U.S. at 160 n.2 (Brennan J. dissenting); Vukadinovich v. Bartels 853 F.2d at 1391; Koch v. Hutchinson 847 F.2d at 1448.

The question remains whether the defendants are immune from suit. The right of public employees not to be fired in retaliation for speaking on matters of public concern has been established since at least 1968 see Pickering v. Board of Educ. 391 U.S.563 568 20 L. Ed. 2d 811 817 88 S. Ct.1731 1734-35 (1968) and was affirmed in Connick v. Myers 461 U.S. at 154 in 1983. Contrast Duarte v. Healy 405 Mass. at 49 in which the rights of probationary fire fighter recruits with respect to a drug testing policy were held to be not clearly established. Considering the record as a whole particularly the forum in which Caron expressed herself we conclude that at least for purposes of summary judgment it was "clearly established" that Caron's expression had sufficiently addressed a public issue to entitle her to First Amendment protection. Accordingly the judgments entered on the four counts of the complaint alleging violations of the State and Federal Civil Rights statutes (counts 2 3 4 and 5) are vacated and the case is remanded to the Superior Court for further proceedings on the remaining issues in the case.

So ordered.

Concurring: The Hon. Justice Brown

Although I fully agree with the careful and sound treatment of this matter by the majority I believe that the same result could be reached more directly. I am of opinion that the plaintiff's affidavit cited by the majority in note 6 at 276 is sufficient to raise an issue of material fact as to whether the alleged actions of the defendants and certain of their colleagues (e.g. another supervisor) were threatening and were intended to intimidate or coerce the plaintiff to refrain from exercising her rights to free speech under the Federal and State Constitutions. See Batchelder v. Allied Stores Corp. 393 Mass. 819 821 822-823 473 N.E.2d 1128 (1985). This most certainly is a jury question at this stage of the proceedings.

The plaintiff must be afforded the opportunity to establish that the remarks attributed to the defendants were substantially accurate and that their clear implications accurately reflected their state of mind. The granting of summary judgment in such cases "is disfavored." Pederson v. Time Inc. 404 Mass. 14 17 532 N.E.2d 1211 (1989). Flesner v. Technical Communications Corp. 410 Mass. 805 809 575 N.E.2d 1107 (1991).

The abuse of power by public officials over their subordinates -- whether by intimidation and coercion either to engage in improper conduct or as alleged here to refrain from exercising rights -- must be extirpated. It is in this area that Court which are often the final forum to which victims of such abuse can turn must act with particular care to find the truth. No conduct strikes me as being more coercive than for a government official one vested with the public trust to exercise his powers in the abusive manner here alleged. This would seem to be particularly egregious in this context where it was intended to chill the free speech rights of a subordinate.