Public Employees and First Amendment Rights
This page provides some qualified answers to the following questions:
1. How does the First Amendment protect public employees?
2. Do I have any other protections against being discharged
as a public employee?
3. What has the U.S. Supreme Court said about the First
Amendment rights of public employees?
4. What must I prove to win a First Amendment retaliation
case?
5. What are matters of "public concern"?
6. What are not generally considered matters of "public
concern?"
7. How can I tell the difference between matters of
"public concern" and those which are not?
8. What is the balancing test courts use to decide these
cases?
9. Aren't these factors vague or subjective?
10. Is speech protected even if it is just part of doing my
job?
11. I am a high school teacher. Can the school censor what I
teach my students?
12. Is filing a grievance protected the same as speech?
13. What time limits apply to First Amendment retaliation
cases?
14. Do I have other remedies?
15. Do I have to look for a job once I've lost mine?
16. Should I get a lawyer?
1. How does the First Amendment protect public employees?
The First Amendment to the U.S. Constitution says that
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances."
The first thing to know about the First Amendment is that it
is a limit only on government. It prohibits the federal government from making
laws that infringe on the rights of religion, speech, press, assembly and
petition. Through the Fourteenth Amendment, state and local governments are
also prohibited from infringing on these rights. Yet, one of the most powerful
restraints on individual freedom is the power of employers to discharge
workers. If your employer is a private entity, the First Amendment offers you
no protection from being fired on account of what you say. (You may still have
protection from other sources described below, or in the one state that
abolished employment-at-will, Montana).
Public employees, on the other hand, work for the
government. So, public employees do have protection from retaliation for
exercising certain First Amendment rights. Courts have been cautious in this
area, limiting the protection to speech that is on matters of "public
concern." The Supreme Court is not yet ready to say that public employees
are protected from retaliation for any First Amendment activity. Thus, while
the government could not put someone in jail for complaining about a meager
raise, the government might still be able to fire a public employee for this
reason, unless the complaint was a matter of "public concern."
2. Do I have any other
protections against being discharged
as a public employee?
Many, but not all, public employees have other protections.
If you belong to a union, you are likely to be protected from any discharge
that is without "just cause." This right is protected by binding
arbitration. Similarly, many state and local governments have civil service
laws that promise continued employment during good behavior. The civil service
laws typically create a government agency to conduct hearings on whether there
is sufficient evidence to justify a discharge or long suspension. Public
employees with these rights will want to carefully consider whether to pursue
these protections with an administrative agency, or alternatively a First
Amendment case in court. You (and your attorney) will need to consider the
merits of your claims, as well as the reputation of the arbitrators, civil
service agency, and the courts in your area. You may also consider pursuing
both options, accepting the risk that a decision in one case may possibly
control the outcome of the other.
There are also protections for those whistleblowers who
report government illegality, waste, and corruption, whose reports are likely
to make the perpetrators mad. By protecting the rights of whistleblowers, we
can discourage not only the retaliation, but also the corruption itself. See
our site's section on whistleblowing for more information
3. What has the U.S. Supreme Court said about the First
Amendment rights of public employees?
The Supreme Court has ruled that public employee speech
involving matters of public concern constitutes protected speech under the
First Amendment.
The U.S. Supreme Court first recognized that public
employees could sue for retaliation in 1968. In the case Pickering v. Board of
Education, the Court set out the
balancing test that remains controlling law today:
"the interests of the [employee] as a citizen, in
commenting on matters of public concern" must be balanced against
"the interest of the State as an employer, in promoting the efficiency of
the public services it performs through its employees."
In other words, if you bring a claim against your employer
under the First Amendment, you must convince the court that your interest in
speaking openly on a matter of public concern outweighs the government's
interest in having an efficient workplace.
This is an important right, because, as the Supreme Court
has conceded, government employees are often in the best position to learn the
deficiencies in the government agencies for which they work. It is important to
allow government employees to make these deficiencies open to the community, so
the public can debate how to improve them.
4. What must I prove to win a First Amendment retaliation
case?
To win a retaliation case under the First Amendment, a court
must find that:
the plaintiff was
engaged in a constitutionally protected activity;
the defendant's
adverse action caused the plaintiff to suffer an injury that would likely chill
a person of ordinary firmness from continuing to engage in that activity; and
the adverse action
was motivated at least in part as a response to the exercise of the plaintiff's
constitutional rights.
For a public employee claiming retaliation by the employer,
the court must also find that:
the employee's speech
was a matter of 'public concern'; and
the interest of the
employee as a citizen, in commenting on matters of public concern, outweighs
the employer's interest in promoting the efficiency of the public services it
performs through its employees.
What are matters of "public concern"?
Since the First Amendment is a constitutional principle, the
doctrines that interpret it come from a series of court cases, rather than laws
that have been passed. The courts add to the list of what subjects are of
"public concern" only when a particular case requires them to decide
on a new issue. We can look to some of those cases to discern what is, and is
not, of "public concern."
The Supreme Court has found the following speech to be of
public concern:
the allocation of
school funds, and the administration's methods of informing, or not informing,
the taxpayers of the real reasons why additional tax revenues were being sought
for schools,
testifying before a
state legislature,
a memorandum relating
to teacher dress and appearance that the school principal had circulated to
various teachers at a public school, statements concerning
a School District's allegedly racially discriminatory policies, where speech
criticizes government inefficiency and waste, not as an aggrieved employee, but
as a concerned citizen,
staff psychologist
criticizing a hospital for unnecessary psychotropic drugs, failing to provide
safe working conditions, and inadequately supervising a penal code patient,
the manner in which
police and fire fighters performed upon a particular occasion,
adequacy of funding
for emergency services, environmental violations at wastewater treatment plant,
an elementary school
teacher who claimed she was fired for inviting actor Woody Harrelson to come
speak to her class about the environmental benefits of hemp.
6. What are not generally considered matters of "public
concern?"
The Supreme Court has ruled that when employee expression
cannot be fairly considered as relating to any matter of political, social, or
other concern to the community, government officials should not have to suffer
too much interference with managing their offices.
Your employer may dismiss you for speech that is not
considered of public concern, such as employee grievances concerning internal
office policy, such as a petition circulated by an Assistant District Attorney
to other Assistant District Attorneys about the office's transfer policy,
office morale, and whether a grievance committee was needed. However, a person
dismissed for such activity would have the same First Amendment protections a
non-employee would have in a libel or other case.
7. How can I tell the difference between matters of
"public concern" and those which are not?
The result of various Supreme Court cases is that some
speech is more clearly of "public concern" than others. Matters of
elections, pending legislation, corruption, race discrimination, public health
and safety are in the zone of public concern. Matters of internal employment
policy that do not touch on these public concerns are normally unprotected.
Other matters may or may not be of "public
concern," depending on the scope of media attention, controversy, or, on
the other hand, how deeply they disrupt the function of the public office.
Sometimes we just cannot tell what a court will do with a case raising a new
area or an issue that raises strong concerns about both public policy and
internal disruption. As the Supreme Court stated in Connick v. Myers:
"Whether an employee's speech addresses a matter of
public concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record."
Balancing test courts use to decide these
cases?
Once a plaintiff states a claim for unlawful retaliation, a
court must decide if
"the interest of the employee as a citizen, in
commenting on matters of public concern, outweighs the employer's interest in
promoting the efficiency of the public services it performs through its
employees."
Courts have to make this decision after weighing the facts
of each particular case. Some balancing factors for a court to consider include
whether:
the statement impairs
discipline by superiors or harmony among coworkers,
the statement has a
detrimental impact on close working relationships for which personal loyalty
and confidence are necessary, and
whether the speech in
question interferes with the normal operation of the employer's business.
The extent of the government's burden to show disruption
depends on the nature of the employee's expression. The more important the
First Amendment interest, the more disruption the government has to show. A
speaker's "personal stake" in a controversy does not prevent speech
on the issue from involving a matter of public concern.
9. Aren't these factors vague or subjective?
Yes, these factors may seem vague or subjective. For
example, even though the education of special needs students is clearly a
matter of public concern, a principal may lawfully discharge teachers for
disobeying an order to quit talking about this subject. The 8th Circuit Court
of Appeals held that the speech "resulted in school factions and disharmony
among their co-workers and negatively impacted [the principal's] interest in
efficiently administering the middle school." Fales v. Garst.
Compare this result to Belyeu v. Coosa County Bd. of
Education, where the Court of Appeals in
Atlanta upheld the rights of a teacher's aide who called for a commemoration of
Black History Month in a speech to a PTA meeting. Immediately after the
meeting, the principal told her he wished she had raised this issue privately
rather than publicly. A lower court determined that the speech clearly touched
on a matter of public concern, but that the school system's interest in
avoiding racial tensions outweighed the aide's right to free speech. On appeal,
however, the Court reversed, writing that the aide's "remarks did not
disrupt the School System's function by enhancing racial division, nor, based
on the nature or context of her remarks, was her speech likely to do so."
10. Is speech protected even if it is just part of doing my
job?
This question was recently answered by the U.S. Supreme
Court in a 5-4 decision. In the case of Garcetti v. Ceballos, the Court decided that employees must be
acting as private citizens to receive First Amendment protection. That is, they
are not acting as private citizens while performing their job duties. In
essence, the boss can control what is said on the job, but not what the
employee says on matters of public concern as a private citizen.
The Court stated, "We hold that 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."
So, to receive First Amendment protection, the employee must
apparently be on his or her own time (clocked-out), and speaking in a forum for
citizen expression on matters of public concern. Those employees who claim that
they were just "doing their jobs too well" will find that they no
longer have First Amendment protection. (They may still have protection under
specific laws; for example, if they report environmental violations as required
by federal law, then the environmental laws will still provide protection
against adverse employment actions.)
The Garcetti decision is a setback for public employees, and
we can look forward to further developments in the law as legislators consider
the need for new laws, and courts issue further decisions in this area.
11. I am a high school teacher. Can the school censor what I
teach my students?
The speech of teachers in the classroom represents the
school's educational product. Most courts apply to teachers' speech the more
deferential standard that asks whether there is a legitimate educational reason
for the school board's policy.
One federal appeals court determined that any form of
censorship must be reasonably related to a legitimate educational reason.
However, many courts are highly deferential to employer interests, especially
public school officials. For example, in Fowler v. Bd. of Education of Lincoln
County, Ky., a teacher found no
protection from the Cincinnati appeals court after she showed an R-rated movie
(Pink Floyd -- The Wall) to her class.
As a result, teachers should understand that the traditional
First Amendment rights of academic freedom generally accorded to university
professors are much more limited in public primary and secondary schools.
12. Is filing a grievance protected the same as speech?
Yes, and perhaps even more so. Through the "petition
clause" of the First Amendment, the Constitution's Framers recognized that
those who ask government to address unfairness face an extra risk of
retaliation. Through the "petition clause," they flatly prohibited
any restraint on petitioning government for redress of grievances. At worst,
courts will treat a petition as "speech" and require that it pass
both the "public concern" and balancing tests before protecting
public employees who present grievances.
However, different courts have different views on whether
the "public concern" standard should apply to retaliatory dismissal
of a public employee who files a "petition."
With a labor grievance, the government can hardly claim that
the employee was being disruptive, since the employee is following the government's
own policy on how to file the grievance. Hopefully other courts will see the
light that the right to petition is not limited to matters of public concern.
Until then, many labor activists will suffer retaliation without a remedy.
13. What time limits apply to First Amendment retaliation
cases?
The time limit for federal employee claims of retaliation in
violation of the First Amendment will depend on the administrative remedies
available. If you have a right to appeal an adverse employment action, for
example to the Merit System Protection Board (MSPB), then you do not have a
right to sue in court. The time limit for MSPB appeals is typically thirty (30)
days. See the MSPB's Appeal Process for more information.
A federal whistleblower who filed a complaint with the
Office of Special Counsel (OSC) will have sixty-five (65) days after OSC issues
a notice of termination of its investigation. If OSC takes longer than 120
days, then an appeal can be filed anytime thereafter (up until 60 days after
receipt of notice from OSC).
The time limit for state and local employees to file a
lawsuit for violating the First Amendment varies from state to state. This is
because Congress did not establish a time limit for claims under the federal
law that allows people to sue when someone acting "under color of state
law" violates rights guaranteed by federal law. So, the Supreme Court has
said that federal courts should use the time limit for personal injury claims
in the state where the court is located. This is the same time limit set by
each state for automobile accident claims. Depending on the state, the time
limits run from one year (Kentucky, Louisiana and Tennessee) to six years
(Maine and North Dakota). You can find the time limit in your state from web pages
like:
Personal Injury Statute of Limitations
14. Do I have other remedies?
Some states may recognize that a discharge in violation of
the First Amendment is a wrongful discharge and allow you to sue for damages in
state court. See, for example, the New Jersey Conscientious Employee Protection
Act.
We can also ask our state legislators to adopt the Montana
law that abolished employment-at-will. In Montana, no employee who has
successfully completed the probationary period can be fired without cause.
Montana adopted the statute in the 90's and its economy did not stop. Still, no
other state government has adopted a similar law. If you are unlawfully fired,
you can also apply for unemployment compensation benefits. See our site's
termination section for more information.
15. Do I have to look for a job once I've lost mine?
Whenever anyone has a legal claim against another, they have
a duty to mitigate damages. That means you have to do what you can to minimize
the damages. In retaliation and discrimination cases, a discharged worker has a
duty to look for new employment. If the other side can convince the judge or
jury that you did not do what was reasonable, you could win your case and be
awarded one dollar (nominal damages). In employment cases, you must make a good
faith effort to reduce the money that you have lost because your former
employer caused you to lose your job. This means that you need to actively look
for another job. For more information, please see our site's mitigation page.
16. Should I get a lawyer?
It is difficult for most lay people to collect all the
useful evidence, organize it into a persuasive story, and comply with all the
procedural rules to win a retaliation case. Some lawyers with experience will
accept cases even when the client cannot afford to pay regular fees. If the
lawyer has enough confidence in the client and in winning the case, the lawyer
may accept the case on a contingent basis. The lawyer will trust the judge to
award fair attorney fees after the client has won a favorable decision. Clients
will benefit from shopping around for a lawyer as soon as possible after the
employer's first adverse action. Then the lawyer can help make sure the
complaint gets filed on time and at the right place. The lawyer can also help
make sure that the most important facts are disclosed in the first statement of
the complaint. When you shop around for an attorney, look for attorneys who
have experience in employment matters.
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