The First Amendment to the Constitution of the United States is, at first blush, straightforward: “Congress shall make no law…abridging the freedom of speech….”
However, as so often happens in the legal world, and especially when employee rights are at stake, things are never quite as simple as they may appear at first blush. After all, one would think that in light of the First Amendment command that would be the end of the argument. It should follow then that the government should not be able to discharge or discipline employees of the government because of their speech.
Not so fast.
The United States Supreme Court in Pickering v. Board of Education recognized that public employees may not constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens. Notwithstanding that pronouncement, the Court also noted that the government, as an employer, has an interest in regulating the speech of its employees. As a result, the Court, as courts often times do, created a balancing test.
Thus, the Court in Pickering articulated a test that purports to balance the interest of the employee, as a citizen, to comment on matters of public concern and the interest of the government, as an employer, to promote the efficiency of the public services it performs through its employees. The rub, as it may be, is that even before a court engages in this balancing of interests, the statement by the public employee must be over a matter of “public concern.” If the statement over which the public employee was disciplined or discharged does not implicate “public concern,” a public employer may discharge the public employee and the balancing test is not applied.
What then is a matter of “public concern?”
In Connick v. Myers, the Supreme Court offered a hint at what a matter of “public concern” is when it noted that:
[w]hen employee expression cannot be fairly considered as relating to any matter of political, social or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.
In Connick, the Court noted that speech that reflected an individual employee’s personal dissatisfaction with her working conditions, or a personal “gripe,” did not implicate matters of public concern. As a result, the Court looked no further into whether the public employer had violated the employee’s constitutional rights because matters of “public concern” were not at issue.
As if the decisions in Pickering and Connick didn’t minimize the First Amendment protections available to public employees enough, in 2006, the Supreme Court added an additional complication to the ability of public employees to enjoy free speech.
In Garcetti v. Ceballos, the Supreme Court further held that a public employee enjoys no First Amendment protection at all for speech made pursuant to the employee’s official duties. The Court found that when public employees make statements pursuant to their official duties, they are not speaking as citizens for purposes of the First Amendment. Therefore, according to the Court, the First Amendment does not insulate those types of communications from discipline by a public employer.
The implications of Supreme Court interpretation of the First Amendment is that public employees enjoy much less protection under the First Amendment than does the average citizen. First, statements made pursuant to official duties enjoy no protection. Second, even assuming a statement is made outside an employee’s official duties, the statement must relate to matter of “public concern.” Third, even if a public employee who has been discharged because his or her speech surmounts those hurdles, public employer action against an employee will still be upheld if it is more important to promote efficiency than protect employee speech.
Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A.