A screen grab from the Twitter account of Juli Briskman, who is suing her former employer. Briskman claims she was fired over her expression of disapproval as Trump's motorcade passed her.

Updated 2:06 p.m.

A marketing analyst who was captured in a viral photo flipping off President Donald Trump's motorcade on a bike ride was not protected from termination under free speech provisions of the state and U.S. constitutions, a Virginia judge ruled Friday.

Attorneys for Akima LLC and Juli Briskman, the company's former marketing specialist, argued in Fairfax County Circuit Court over whether the company's termination violated the public policy exception to Virginia's at-will employment scheme.

Judge Penney Azcarate ruled against Briskman's claim that she was unlawfully fired but kept alive one count that alleges breach of contract over severance pay. Briskman's attorneys have 21 days to amend their wrongful termination claim in any new complaint. They also have an opportunity to appeal the decision.

Briskman, who attended Friday's hearing, said she challenged her firing on free speech grounds to make a larger statement. “That is really what we are looking for. A win in that area is a win for democracy,” Briskman said. She added, “It's so that people don't have to choose between their morals and their pocket books.”

Briskman was fired in October 2017, days after a White House pool photographer caught her giving a middle finger to Trump's motorcade as it passed by her on a weekend cycling outing. The photo rocketed across the web and late-night television. Briskman, who was not initially identified, posted the photo on her Twitter and Facebook pages.

The company's lawyers at IslerDare, the Virginia labor and employment firm, claimed Akima fired Briskman for violating its social media policy. Briskman argued she was let go because Akima, a major U.S. government contractor, feared retaliation from the Trump administration and the loss of multimillion-dollar government contracts.

Virginia is an at-will employment state and the company's attorney, Edward Lee Isler, argued that free speech in the Constitution does not fall into a narrow public policy exception. Private employers do not have to abide by free speech provisions of the Constitution, Isler told the judge.

“Akima is not subject to the freedom of speech clauses,” Isler argued. He continued, “There are no facts to support that the government coerced Akima to do anything. The company found out about a rude and profane act and Akima decided it wasn't interested in continuing with that particular person.”

Briskman's attorney, Maria Simon of the Geller Law Group, argued that the company's alleged fears of retaliation undermined the state's public policy. She said free speech protections in the Virginia and U.S. constitutions prevent retaliation, and she suggested the current political climate could give the company reason to fear coercion.

“I live in black books,” Azcarate said during one exchange with Simon. Statutes apply to private citizens and employers, the judge also said, but the U.S. Constitution “does not apply to private persons.” She added: “Statutes and constitutions are not the same.”

Isler said Akima was not persuaded by the current political climate and would have made the same move to fire Briskman had President Barack Obama been in office. He called the argument of his opposing counsel “fatally flawed.” Isler said after the hearing that he was pleased with the judge's ruling on the wrongful termination claim.

Briskman's lawyers said in a statement after the hearing: “Juli Briskman's case is about democracy and the grave threat facing all Americans if keeping our jobs relies on our unconditional silence and support of the government in power. We intend to review the court's concerns and decide how to proceed. We will continue to stand with Juli Briskman and all Americans against autocratic capture.”

Briskman said the judge's decision was not completely unexpected. “There is still room to have a conversation,” Briskman said.

 

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