By Lata Nott, Executive Director of the First Amendment Center, and Melemaikalani Moniz, Legal Intern
April 24, 2017
The First Amendment guarantees that, for the most part, the government can’t punish or limit speech. The First Amendment does not impact the ability of private citizens and organizations to punish or limit speech. This is why it’s permissible for a private employer to fire an employee for engaging in speech the employer disapproves of; private employers have the right to manage their employees as they see fit. (The exception to this rule is if a private employer is engaging in discriminatory employment practices, which would be a violation of the Civil Rights Act–not the First Amendment).
The situation grows more complicated when the government is the employer. Like any other employer, the government has a legitimate interest in maintaining efficient offices and agencies, which often requires managing and disciplining employee speech. At the same time, it is impermissible for a government employee to have fewer free speech rights than a private citizen not employed by the government. The law attempts to balance these two interests.
“More than 20 million Americans work for federal, state or local governments…While there are an infinite number of factual scenarios in which a public employee could raise a First Amendment claim, the cases tend to fall into one of several general categories:
- A public employee is fired because of speech or expressive conduct that the employer claims is disruptive to the efficient operation of the workplace.
- A public employee contends that he or she has suffered an adverse employment action (dismissal, demotion, etc.) in retaliation for First Amendment-protected conduct.
- A public employee is fired because of political patronage — that is, for not belonging to his or her boss’s political party.”
Courts currently employ a three-part test to determine whether a government employee’s speech is protected by the First Amendment.
1) First of all, government employees are only protected by the First Amendment when they are speaking as private citizens. If their speech is part of their official job duties, then they can be fired or disciplined for it.
This rule comes from a 2006 Supreme Court case, Garcetti v. Ceballos. Obviously, it isn’t always easy to differentiate when a government employee is speaking as a private citizen, and when they are speaking as a government employee.
The Supreme Court has provided very little guidance in this area. Garcetti established that an employee’s official duties are not limited to the employee’s official job description. Thus far, the Supreme Court has only specified one situation where Garcetti does not apply: in Lane v. Franks, the Court held that an employee is not speaking pursuant to his official duties when he gives sworn testimony that is compelled by subpoena.
The Garcetti decision means that many government employees who are performing whistle-blowing functions–meaning, disclosing information about a government agency violating the law, wasting money, or abusing its authority–are not protected by the First Amendment, since reporting misconduct is often part of an employee’s official duties. Although there are state and federal laws that are specifically meant to protect whistleblowers from being fired, demoted, or otherwise retaliated against by the agencies they work for, many have criticized the Garcetti decision for depriving most whistleblowers of First Amendment protection.
2) If a government employee was speaking as a private citizen, the next question is, was their speech regarding a matter of public concern? If they weren’t speaking on a matter of public concern, the First Amendment will not protect their speech. If they were speaking on a matter of public concern, the First Amendment might protect their speech. (There’s still a test to go after that.)
Speech is considered to regard a matter of public concern if it relates to a social, political or community issue. While speech touching on corruption or racial discrimination in a workplace tends to be viewed as relating to matters of public concern, at least one federal appeals court (the 11th Circuit) has held that speech pertaining to sexual harassment is a matter of private concern. The definition of public concern has been interpreted widely by different circuit courts, so the definition might vary depending on where the case has been brought.
The Supreme Court established this as a necessary element for a government employee’s speech to be protected by the First Amendment in Pickering v. Board of Education. In a later case, Connick v. Myers, the Supreme Court instructed that the question of whether an employee’s speech addresses a matter of public concern should be determined by looking at the content, form, and context of a given statement, as revealed by the whole record, and not by applying a common, standardized rule. The Court also said that this was a question of law, meaning that it should be left to the court to decide, not a jury.
3) If a government employee was speaking as a private citizen on a matter of public concern, the next question is whether the government employer’s interest in efficiently fulfilling its public services is greater than the employee’s interest in speaking freely.
This test was also established by the Pickering and Connick cases.
The government employer has an interest in efficiently providing public services and maintaining good professional relationships within an office. Courts analyze the government employer’s interest by considering the following set of factors:
When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference is given to the government employer’s judgment. After a court considers each factor, it must weigh these factors against the employee’s interest in speaking out.