Public Employees Do Not Trade Their Free Speech Rights for Employment

Public Employees Do Not Trade Their Free Speech Rights for Employment

Holding public employment and wanting to comment on controversial issues can sometimes raise unique challenges. Your personal opinions and the views of your employer may conflict.  This type of conflict can and has resulted in adverse employment actions against the employee with disapproved views. The First Amendment does protect public employees, but that protection depends on the context in which the statements were made and the nature of the comments.

For example, in certain contexts, the employee speaks as a representative of his or her employer.  In these contexts, the employer is speaking through its employee and can control the content of the employee’s speech.  In other circumstances, the speech is part of the employee’s duties as an employee.  An employer, for example, can demand that an employee write memos that are limited to the task assigned to the employee.  Nor can an employee freely disrupt the workplace in order to air his or her personal views.

In many circumstances within the workplace and almost always when outside the workplace, public employees have First Amendment rights.

Pickering v. Board of Education (1968), the United States Supreme Court established that those who have accepted government employment do not forfeit their right to speak out on matters of public concern simply because of their employment by a public entity. In this Pickering, the balance between the protection of the best interest of the State and a citizen’s right to free speech, regardless of employment, was examined in depth.

Teacher Sues School Board for Termination as Result of Disparaging Comments

In 1968, a Lockport High School science teacher, Marvin Pickering, was terminated for publicly criticizing the school board in a letter to the community’s local newspaper (the Lockport Herald). In the letter, Pickering expressed concerns about the school board’s allocation of funds, namely the disproportionate amount being spent on athletics as opposed to academics. As a result of this letter, Pickering was terminated from his public employment. Pickering fought the termination in state court, in which the school board argued that his letter was damaging to the interests of the school. The trial court ruled in favor of the school board, and that decision was affirmed by the Illinois Supreme Court.

Following this decision, Pickering appealed to the U.S. Supreme Court. The United States Supreme Court overturned the decision of the Illinois Supreme Court in an 8-1 decision. This decision challenged the widely held notion that public employees relinquish their right to free speech as a condition of their employment with the government. It was at this point that the best interests and rights of a public employee as a citizen were balanced against their responsibility to uphold the interests of their employer.

Public Employees Have the To Right Speak Freely on Matters of Public Concern

Two key elements of this case are the subject matter of Pickering’s letter and the functioning of his former workplace. Justice Thurgood Marshall noted that the distribution of money between academics and athletics is a matter of public concern. Marshall also expressed that in Pickering’s specific employment situation, loyalty and confidence were not essential for the proper function of the institution.

Additionally, it was determined that although the information dissemination by Pickering was not authorized by the School Board, there was no evidence that Pickering had knowingly made false and damaging statements. As a result and in conjunction with another similar case, today, the test used in matters of public employment and free speech is called the Pickering-Connick test.  

When First Amendment Rights Are Violated, It Is Essential To Take Legal Action

Your role as a government employee should not overshadow your rights as a citizen of the United States. While public employees take unique responsibilities in terms of their employment, the rights afforded to them by the First Amendment, including the right to speak freely, cannot be taken away.

If you believe your right to free speech was violated as a result of your public employment, it is essential to enlist the help of an experienced attorney. At The Law Offices of George M. Sanders, PC, we are passionate about protecting the constitutional rights of our clients. We will thoroughly evaluate the details of your case and determine the best strategy to restore justice. Contact us today to request a consultation.