By Jana O'Leary Sullivan
From the Women’s March to the Charlottesville demonstrations, from controversial Twitter and Facebook posts to NFL players kneeling during the anthem, 2017 was an eventful year for the First Amendment.
It was an especially eventful year for the interplay between the First Amendment and the workplace: A Charlottesville demonstrator was fired from his job at a hot dog restaurant after the march; a woman bicyclist was fired after flipping off the president’s motorcade; a Google employee was fired after publishing an article about women in the tech industry; and the list goes on.
Most of these employment situations, however, do not implicate the First Amendment. Instead, the First Amendment prohibits the government, including cities—not private entities/employers— from restricting freedom of speech (or other freedoms, such as the freedoms of press, religion, and assembly).
The tide turns
Up until the 1960s, the U.S. Supreme Court decided that public employers could fire or discipline employees for their speech, writing in a 1952 decision, “You have a constitutional right to say and think as you will, but you have no constitutional right to work for the government.” However, that all changed with the U.S. Supreme Court’s landmark case of Pickering v. Board of Education in 1968, and the subsequent case of Connick v. Myers in 1983.
Today, it is the law of the land that public employees do not surrender their First Amendment and other constitutional rights merely by working for the government. But a public employee’s First Amendment rights are not absolute.
Instead, the First Amendment protects a public employee’s speech when the speech relates to a matter of public concern, and the employee’s interests in speaking outweigh the employer’s interests in restricting the speech. It is largely irrelevant whether the speech happens at work or off-duty, on a person’s private Facebook account, or at a public event.
Matter of public concern
So, what’s a matter of public concern? Generally, any speech related to a political or social issue or political figure will satisfy this requirement. In contrast, complaints about an employee’s own employment or supervisor or other private matters are not protected.
Even if a public employee’s speech relates to a matter of public concern, courts balance the employee’s interests in speaking with the employer’s interests in efficiently providing public services and maintaining workplace discipline and harmony. If the employer’s interests outweigh the employee’s interests, the employer can discipline the employee, up to and including termination.
Whether the employer’s interests have been harmed by the employee’s speech depends on the facts of each case, including the nature of the employee’s job, the nature of the speech, and the effect on the workplace. Therefore, before taking employment action because of an employee’s speech, cities should document the negative effects of the speech on the workplace and work with the city attorney.
Nature of job and speech
While there are no hard and fast rules, the nature of the employee’s job and the nature of the speech will significantly affect the employer’s interests. If the employee is the face or leader of the public entity (e.g., city administrator/manager or department head), has power over others’ constitutional rights (e.g., police officers), or has significant contact with the public (e.g., firefighters, parks and rec employees, etc.), the more likely the employer will be damaged by that employee’s speech.
Further, the more controversial or offensive the speech, the more likely the employer will be damaged by the speech. For instance, take the recent case of an Ohio firefighter who was fired after he posted on Facebook that “One dog is more important than a million [African Americans].” (He used a racial slur instead of “African Americans.”)
If the employee filed a First Amendment claim, the city would have a very strong defense. Not only does the employee’s statement contradict his firefighter duties, it is offensive and caused outrage in the community.
Other laws and provisions may protect certain speech for both public and private employees, including the Minnesota whistleblower statute (complaints about suspected or actual violations of the law), state and federal anti-discrimination laws (religious speech, discrimination/retaliation complaints, etc.), state and federal labor laws (employment complaints), and collective bargaining agreements (“just cause” requirement for discipline/termination).
Ultimately, the First Amendment rights of public employees are often complicated, and every case is unique. Therefore, cities should consult with their city attorneys in making employment decisions related to an employee’s speech.
Jana O’Leary Sullivan is defense litigation supervisor with the League of Minnesota Cities. Contact: email@example.com or (651) 281-1243.
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