Nahmod Law

This is the ninth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon. These posts are not intended to provide legal advice and should not be used for that purpose.

(Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process, as well as state action).

What are the free speech rights of public employees with regard to public employer discipline or punishment?

Notice that I refer to public employees: the First Amendment does not apply to private employees with regard to private employer discipline or punishment.

Notice also that this discussion is about public employer discipline or punishment for speech, and does not concern the free speech rights of public employees as against the government generally. So we’re not talking here about criminal punishment for the public employee’s speech.

With these important qualifications, the short answer to the question is that the First Amendment protects the free speech of public employees with regard to public employer discipline or punishment only under the following circumstances (I call it a three-step dance):

(1) where the public employee speaks as a citizen, and not pursuant to her employment duties and obligations (Garcetti v. Ceballos, 547 U.S. 410 (2006)) and

(2) where the speech of the public employee is on a matter of public, not private, concern (Pickering v. Bd. of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 1983)) and

(3) where the free speech interests of the public employee and society outweigh the public employer’s interests as an employer.

Let me explain these three requirements in a non-technical manner.

(1) If a public employee’s job obligations, for example, require her to report criminal or other misconduct by higher-up officials in her department, and the public employee does so and becomes a whistleblower, the public employee is not necessarily protected by the First Amendment from public employer discipline. This result may seem shocking, and it is to many, because it discourages whistleblowing. But this is current First Amendment law under Garcetti. However, keep in mind that state or local law may provide a separate remedy for such whistleblowers.

(2) But even where the public employee’s speech is not part of that employee’s job obligations, she is not yet over the First Amendment hurdle: the speech must also be on a matter of public, not private concern. For example, if the public employee’s speech primarily concerns an employment related grievance specific to her, such as salary or working conditions, then this would be speech on an issue of private concern, and the First Amendment would not be applicable to the public employer’s discipline for this speech.

(3) Finally, if the public employee has made it this far, then her First Amendment claim becomes subject to a balancing test, under which the court weighs the First Amendment interests of the public employee and society against the interests of the public employer in, say, discipline, morale, work relationships and the like. Most public employees in this situation typically prevail on the First Amendment merits. Still, it takes a lot for public employees to get to the final step of this three-step dance.

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