2007 Autumn, Pg. 62. Public Employees and Constitutional Free Speech: Maybe a Little Less Free? New Hampshire Supreme Court Appears to Say No.

New Hampshire Bar Journal

2007.

2007 Autumn, Pg. 62.

Public Employees and Constitutional Free Speech: Maybe a Little Less Free? New Hampshire Supreme Court Appears to Say No

New Hampshire Bar JournalAutumn 2007, Volume 48, No. 3Municipal LawPublic Employees and Constitutional Free Speech: Maybe a Little Less Free? New Hampshire Supreme Court Appears to Say NoBy Attorney Daniel D. CreanAt the turn of the 20th century, when confronted with the issue of whether public employees had a constitutional right to speak out on public issues, courts resoundingly answered in the negative. For example, while serving on the Massachusetts Supreme Judicial Court in 1892, Justice Holmes wrote these famous words, "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman."(fn1) As late as 1952, the United States Supreme Court, in the words of Justice Vinson, opined "If they (certain public employees) do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere."(fn2)

Since then, public employee free speech jurisprudence has evolved, with the United States Supreme Court formally recognizing a public employee's right to speak as a citizen on matters of public concern balanced against the employer's concern for promoting the efficiency of public services it provides through its employees.(fn3) In May 2006, the United States Supreme Court's ruling in Garcetti v. Ceballos(fn4) "clarified" when public employee speech is protected by stating that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens" and "the Constitution does not insulate their communication from employer discipline."(fn5)

Depending on the source of the critique, Garcetti is perceived as either eliminating First Amendment protection for public employees or as merely further clarifying Pickering and its offspring. Recently, the New Hampshire Supreme Court in a case entitled Snelling v. City of Claremont(fn6) appears to have cast its lot with the latter view by ruling that a terminated city assessor's right of free speech was violated by a termination made, at least in part, in retaliation for comments made to a newspaper about the fairness of the city's tax system and allegations of city council members taking unfair, but not illegal, advantage of the tax abatement system. The New Hampshire Court's view appears to fall in line with the general tenor of decisions applying Garcetti, particularly at the federal circuit court level, several of which are summarized below.

Before addressing Snelling, a brief look into the development of public employee free speech is appropriate to set the stage to assess the impact of both this case and Garcetti and to look toward the future of public employment free speech.

Foundations of Public Employee Speech Rights

State and federal Constitutional protections arising under their respective Bills of Rights seek to protect individuals from governmental excesses. Private employment, therefore, generally need not consider restrictions on an employer's authority to control employee speech.(fn7) With regard to the public sector, though, the United States Supreme Court cast a new light on public employee speech in cases arising from the efforts in the 1950s and 1960s to require public employees, particularly teachers, to swear loyalty oaths and reveal groups with which they associated. These cases ruled that the denial of, or placing conditions upon, a benefit or privilege associated with public employment could improperly infringe upon the liberties of speech, religion and assembly. In 1967, for example, the U.S. Supreme Court considered New York statutes that barred public employment based on membership in subversive organizations. Its opinion overturning those restrictions noted the apparently uniform judicial rejection of the theory that public employment could be subjected to any conditions, no matter how unreasonable, simply because a public employer might deny employment altogether.(fn8)

Thus, since at least 1967, it has been settled on the federal level that at least some forms of public employment cannot be conditioned by a governmental employer on a basis that infringes on an employee's constitutionally protected interest in freedom of expression. That concept received a more general formulation in Pickering v. Board of Education, (fn9) which in turn was refined in Connick v. Meyers. (fn10)

In Pickering, we stated that a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. We also recognized that the State's interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem . . . was arriving at a balance between the interests of the [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.(fn11)

Over time, a common formulation for expressing the public employee speech rights came to be known as the Pickering/Connick balancing test which might be stated along the following lines:

A governmental employee may speak as a citizen on matters of public concern if the interest of the employee in commenting on the matter outweighs the interest of the governmental employer in promoting the efficiency of the services it delivers through its employees.

Put another way, just as a public employee does not abandon all First Amendment rights by accepting public employment, a public employer retains a degree of authority and control as an employer. In addition to these primary opinions establishing public employee free speech rights, a number of decisions were issued that refined those rights:

1977: Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 - Confirmed that employers may use a defense based on non-speech-related employee record. 1979: Givhan v. School District,

439 U.S. 410 - First Amendment protects covered employee speech even if expressed privately and not broadcast publicly. 1976 & 1980: Branti v. Finkel,

445 U.S. 507; Elrod v. Burns,

427 U.S. 347- First Amendment protections do not apply to political, confidential, or policy-making positions. 1987: Rankin v. McPherson, 438 U.S. 378 - Employee speech may be cause for employment action if it has a detrimental impact on the work environment.

Public Employee Speech Made as Part of the Employee's Official Duties

From 1968 through 2006 federal circuit courts continued to shape public employee speech within the general confines of the Pickering-Connick balancing test and its offspring, with the general scope of the doctrine remaining intact. The United States Supreme Court reentered the public employee speech arena on May 30, 2006, with its Garcetti ruling. With the benefit of the passage of a year, it seems safe to summarize the case as standing for the following general principles:

1. When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

2. Two inquiries guide interpretation of the Constitutional protections accorded public employee speech:

   (a) Determine if the employee speaks as a citizen on a matter of public concern.

   (b) If so, then determine if the government employer has adequate justification for treating the employee differently from any other members of the general public.

3. The First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities.

   As is common at the U.S. Supreme Court today, the opinion was not unanimous but was decided by a narrow 5-4 vote. The majority opinion, written by Justice Kennedy, characterizes its ruling as being consistent with the Pickering and Connick precedents, which he characterized as distinguishing between a public employee speaking as a citizen and as an employee. The dissenting opinions of Justices Stevens and Souter assert that the notion that there is a difference between speaking as a citizen and speaking in the course of one's employment is erroneous.

   While Garcetti creates a dividing line between protected and unprotected speech, the parties agreed that the statements at issue were in fact made as part of the employee's official duties.(fn12) Thus, the "Court had no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious doubt."(fn13)

   The Seventh Circuit Court decision which is the source of the preceding comment decided, inter alia, the character of a Milwaukee police officer's conversation about a superior's actions (alleged harboring of a suspect) with an assistant district attorney (speech within official duties) in contrast to similar comments made during a deposition in a civil suit (not encompassed within official duties). The court addressed its dilemma in deciding if speech is official based on the identity of the listener, recognizing the:

   . . . oddity of a constitutional ruling in which speech said to one individual may be protected under the First Amendment, while precisely the same...