With the onset of social media, freedom of expression issues have come under the spotlight when it comes to employees and what they say about their employers, particularly those who work for the government. Attorney Brooke Ehrlich discusses when governmental employees free speech rights may be entitled to 1st Amendment protections and when they are not protected.
Related Questions
What is the origin of government employees' free speech
protections?
In short, the answer is the First Amendment. The First Amendment of the US Constitution protects its citizens’ right to freedom of religion and freedom of expression from government interference. Freedom of expression includes the right to freedom of speech, as well as freedom of the press, assembly, the freedom to petition the government for redress of grievances and the rights of association and belief (the last two are considered implied rights). The extent of the protections afforded to these rights have been interpreted by the Supreme Court. For instance, the Supreme Court has held that the First Amendment applies to the entire federal government, even though it is only expressly applicable to Congress. Additionally, the due process clause of the Fourteenth Amendment has been interpreted as protecting an employee’s First Amendment rights from interference by state governments. It is well known that the right to freedom of speech allows individuals to express themselves without government constraint. If the government interferes with free speech by attempting to regulate its content, the Supreme Court requires the government to provide substantial justification for that regulation. (The Court requires a less stringent test for content-neutral legislation.) The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence.
So Does This Mean that an Employee Can Say Anything They Want
and Be Protected?
Only if the employee is speaking as a private citizen, and not as an employee. The Government’s ability to regulate its employees’ speech differs from its regulation of the speech of its general citizenry. In the cases of Connick v. Myers (461 U.S. 138, 140, 103 S.Ct. 1684, 1686 (1983) and Pickering v. Board of Educ. of Twp. High Sch. Dist. 205 (391 U.S. 563, 568, 88 S.Ct. 1731, 1734 (1968)), the Supreme Court held that for a government employee’s speech to have First Amendment Protection, the speech must have been made by a government employee speaking as a citizen and must be on a subject of public concern.
Was the employee speaking as a citizen or as an employee?
Was the employee’s speech at issue conducted in the employee’s role as citizen or as employee? The Supreme Court has clarified this inquiry by holding when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment Purposes, and the constitution does not insulate their communications from employer discipline. If the government employee was speaking as an employee, then there can be no 1st Amendment Issue and the constitutional inquiry ends with no consideration of the Pickering test. The answer to this question is found by analyzing the employee’s motivation and purpose behind the speech. The court must discern whether the employee spoke on behalf of the public as a citizen or on behalf of herself as an employee.
What if the employee's speech was on behalf of the public
as a citizen?
The analysis of a retaliation claim by an employee against a government employer for alleged constitutionally protected speech is comprised of four parts. To prevail under this analysis, the employee must show:
1) the speech involved a matter of public concern;
2) the employee’s free speech interests outweighed the employer’s interest in effective and efficient fulfillment of its responsibilities;
3) the speech played a substantial part in the adverse employment action. If the employee satisfies his burden on the first three steps,
4) the burden shifts to the employer to show, by a preponderance of the evidence, that it would have made the same decision even in the absence of the protected speech.
Who can this type of retaliation claim be asserted
against?
As described, government employee’s free speech rights may be entitled to 1st Amendment protections. If an employee alleges he/she suffered an adverse employment action in retaliation for his/her protected speech, 42 U.S.C. § 1983 provides a vehicle by which the employee can sue. 42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
However, the law has limited who constitutes a “person” pursuant to this statute.
Pursuant to the Eleventh Amendment of the United States Constitution, sovereign immunity protects the state from suit under § 1983 (absent waiver by the State or valid congressional override). The state is not a “person,” and therefore cannot be sued under § 1983.
The law is also clear that State officials, acting in their official capacities, are not “persons” under § 1983. A suit against a state official in his or her official capacity is not a suit against the official, but rather a suit against the official’s office. This is because a judgment against a State official in his or her official capacity necessarily imposes liability on the entity the official represents. Accordingly, a suit against a state official in his or her official capacity is no different from a suit against the State itself.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
