It is a common expression that public employees do not leave their right of free speech at the door when they are hired, which is a truism but only to a certain extent. Offsetting this principle is the recognition by the United States Supreme Court in Garcetti v. Ceballos that: “Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” 

Obviously there is a lot of tension between these two very basic ideas. A recent 2014 decision in Lane v. Franks by the United States Supreme Court focuses on the push and pull (the Court calls it a ‘balancing test”) between the right of public employees to free speech and the need for public employers to provide for an efficient operation in the delivery of public services  by providing some guidance as to where to draw the line.

Knowing when an employee has exercised his or her right of free speech or has communicated on a matter that is not protected – making the speech subject to disciplinary action by the employer – is important in avoiding mistakes leading to costly litigation (damages, attorney’s fees and other costs) because the right of free speech is protected under the Civil Rights Act.

Speech by citizens on matters of public concern lies at the heart of the First Amendment, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth v. United States 

The framework for analyzing whether or not the employee’s interest or the government’s interest prevails requires a balancing of “…the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The Supreme Court has adopted a two-step inquiry in determining whether or not speech is protected. First it is necessary to determine if the matter is of public concern. For example, a schoolteacher who spoke out about a tax increase for the public school system was speaking on a matter of public concern. The court reasoned that teachers would probably be in the best position to provide information on this important subject, which is a matter of public concern.

Bound to Incite but protected

On the other hand, an Assistant District Attorney in a government office who provided a questionnaire to other employees in the office concerning  office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. by the District Attorney Attorney was found to not be exercising her right of free speech since nearly all of the items in the questionnaire pertained to the operation of the office, which  were not a matter of public concern. This case pretty much set the stage for a line of cases holding that matters simply pertaining to the internal operation of government were not protected speech if related to the employee’s job. Whether or not the District Attorney is a jerk or some kind a wizard that really knows how to run an office is beside the point. You know, rumors abound and people feast on the salacious of human interaction particularly at the office. Speech about how the office was run and morale was  not protected because you cannot run government efficiently  in that kind of environment.

The most recent case decided by the United States Supreme Court Lane v. Franks held that a supervisor truthfully testifying under oath before a grand jury for which a subpoena had been issued about a public corruption scandal involving a state legislator who was an employee of the office was protected under the First Amendment because the supervisor was testifying outside of his ordinary job duties. The court held that: ‘Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes.” This is true “… even when the testimony relates to his public employment or concerns information learned during that employment if it is determined that the speech was a matter of public concern.”

If the matter is of public concern the next question “…becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Since free speech is highly protected it seems that once you determine that the speech is a matter of public concern it will be very difficult to justify treating the employee differently.

Public employers need to always carefully examine the facts and the case-law when it makes employment decisions based upon statements made by employees. The Court tries to establish a bright line to assist in applying the “balancing  test” by hinging its decision on whether or not the matter is of public concern or if it simply relates to the employee’s duties. If there is any question the public employer should consult with legal counsel before making an employment decision.

For an earlier discussion of the right of public employees to engage in blogging activities related to their work see my Post on  “Social Media Policy.”

Howard Wright © 2014