Sherlock Holmes and Connecticut's Free Speech Statute

• Pages: 456
• Publication year: 2021

Connecticut Bar Journal Volume 68.

68 CBJ 456. Sherlock Holmes and Connecticut's Free Speech Statute

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Sherlock Holmes and Connecticut's Free Speech Statute

By MARTIN B. MARGULIES (fn*)

CONN. GEN. STAT. § 31-51q, unique in the nation, protects private as well as public employees against "discharge or discipline on account of the exercise ... of rights guaranteed" by the speech, petition and free exercise clauses of the federal and state constitutions, unless the exercise of such rights disrupts the employee's job performance or working relationship with the employer. (fn1) The statute, however, does not explain what it means by the phrase "rights guaranteed." The Connecticut Supreme and Appellate Courts have not yet spoken to the question, (fn2) and the trial courts have developed two distinct approaches.

One approach simply extends, to the private sector, the federal first amendment principles that govern the speech rights of public employees. (fn3) Under this approach, an employee cannot be discharged or disciplined for speech that addresses matters of public concern, regardless of where the speech occurs, unless the speech demonstrably impairs the efficiency of the services that the employee's agency performs. (fn4) In contrast, speech which addresses purely private matters - speech, for instance, which merely challenges the "application of [office] policy to the

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speaker" (fn5) - commands little or no protection. (fn6)

The second approach is more stinting. It starts from the premise that neither the federal nor state constitution guarantee[s]" the right to speak on someone else's private property, (fn7) and concludes, in consequence, that the statute does not protect employee speech at the employer's workplace. According to this approach, my private employer cannot fire me for posting a political sign on my front lawn, (fn8) or for speaking out from a soapbox in a public park, (fn9) or for writing this article, because the first amendment and counterpart state constitutional speech provisions "guarantee" my right to do these things. But if my employer fires me for speaking on company premises, the statute affords me no recourse, even if my speech addresses public concerns of the highest order. (fn10)

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Neither approach makes sense. The first approach - what I might call the Connick approach, after the principal United States Supreme Court case that enunciates it (fn11) - renders part of the statute redundant. Section 31-51q, remember, does not only protect private sector employees; it protects public sector ones as well. What possible benefits could inure from extending, to public employees, protections which the federal and state constitutions already give them? If this is all that the statute accomplishes, in its application to the public sector, then the...