III. First Amendment Claims

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III. FIRST AMENDMENT CLAIMS

Applying the First Amendment rights to free speech and association in the employment setting creates both practical problems and doctrinal difficulties. Courts have struggled to balance the government employer's need for efficiency, workplace discipline, harmony, and productivity with the traditional tolerance of "verbal tumult, discord, and even offensive utterance," as "necessary side effects of . . . the process of open debate" protected by the Constitution.¹¹⁷ The Supreme Court has recognized that "when an employee counsels her coworkers to do their job in a way with which the public employer disagrees, her managers may tell her to stop, rather than relying on counter-speech."¹¹⁸ Likewise, the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities.¹¹⁹ Yet the Court recognizes the value of protecting government employees who seek to participate in public debate. The tension between these overarching themes has led to the judicial use of balancing tests and a reluctance to make rulings that intrude too far into the workplace. As a result, the holdings to be found in decisional authority tend to be narrow and fact based. This results in difficult choices for government employers for whom "taking any action" may be risky.¹²⁰

The protection of government employees' First Amendment rights can be traced to Keyishian v. Board of Regents,¹²¹ in which the Court held that even if a public employee can be fired without cause, the employee's right to free expression cannot be infringed by denying or placing conditions on the benefit or privilege of the public employment.¹²²Keyishian represented the culmination of a line of cases decided during the Cold War, which involved government efforts to require loyalty oaths from all public employees.¹²³ The Supreme Court stepped in to prevent government employers from searching out suspected communists by delving into their political activities and ordering public workers to pay political obeisance to the government.

A public employer may not discharge an employee on a basis that infringes his constitutionally protected speech or associations. In bringing a case based on the violation of a public employee's First Amendment rights, the terminated employee must establish that the conduct at issue was entitled to constitutional protection.¹²⁴ The employee must then prove that the constitutionally protected conduct was substantial or a motivating factor behind the termination.¹²⁵ Once an employee meets that burden, the employer may then show by a preponderance of the evidence that it would have made the decision to terminate even if the employee had not engaged in the protected conduct.¹²⁶ The premise underlying the causation rule is that the "constitutional principle at stake is sufficiently vindicated if . . . [the] employee is placed in no worse a position than if he had not engaged in the conduct."¹²⁷

A. Freedom of Speech

Two questions "guide interpretation of the constitutional protections accorded to public employee speech."¹²⁸ The first question is whether the employee spoke as a citizen on a matter of public concern.¹²⁹ If not, the Supreme Court has adopted a categorical rule that denies an employee a "First Amendment cause of action based on his or her employer's reaction to the speech."¹³⁰ If the answer is yes, then the possibility of a claim exists and the court must determine whether the employer "had an adequate justification for treating the employee differently from any other member of the general public."¹³¹

In Garcetti,¹³² the Supreme Court refined and narrowed the test for a plaintiff to succeed with a First Amendment claim in the employment context by clarifying that the first question encompassed two analyses: (1) whether the employee was speaking as a citizen and (2) whether the speech was a matter of public concern. When these requirements are not met, the lawsuit is not sustainable. As explained by the Supreme Court in Connick v. Myers:¹³³

[W]hen a public employee speaks, not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.¹³⁴

1. Speaking as a Citizen

If an employee is speaking not as a citizen but in his capacity as an employee, that ends the First Amendment analysis and no claim exists.¹³⁵ The Court specifically held 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."¹³⁶ The Court reasoned that employers have a heightened need to create substantive consistency and clarity in official communications warranting this categorical rule.¹³⁷ At the same time, the Court rejected any "suggestion that employers can restrict employees' rights by creating excessively broad job descriptions."¹³⁸

Formal job descriptions are not dispositive since "the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes."¹³⁹ The question is whether the employee has spoken in the manner of a citizen or as an employee. For example, the Sixth Circuit held in Weisbarth v. Geauga Park District¹⁴⁰ that when a public employee's speech "owes its existence to [the employee's] professional responsibilities" the speech is not protected.

In Weisbarth,¹⁴¹ a park ranger claimed that she had been terminated for statements she made to a paid consultant that had been hired to evaluate department morale. The plaintiff argued that speaking to the consultant was not actually part of her "official duties" as a park ranger. The Sixth Circuit held that the plaintiff's speech owed its existence to her official job duties and was not entitled to protection.

The Second Circuit has reached a similar conclusion with regard to union grievances, concluding that the "lodging of a union grievance is not a form or channel of discourse available to non-employee citizens" and therefore does not constitute free speech.¹⁴² Speech made while in uniform or to supervisors arising out of the employee's duties may also preclude a First Amendment claim on the basis that the employee is speaking as a public employee, not as a citizen.¹⁴³

2. Matter of Public Concern

The First Amendment only protects speech that is of public concern, not speech that is just a matter of concern to the employee.¹⁴⁴ The court analyzes the content, form, and context of the given statement to determine whether it could "be fairly considered as relating to any matter of political, social or other concern to the community."¹⁴⁵ Speech of general interest, on topics such as disclosure of public officials' wrongdoing or waste and inefficiency of the particular governmental entity, is likely to be considered a matter of public concern. On the other hand, insults and profanity do not generally amount to speech on a matter of public concern.¹⁴⁶ For example, calling the dean of a university a Hitler or engaging in rude or insulting speech is not protected.¹⁴⁷

Judge Posner explained that chitchat is not protected, but speech need not be earth-shattering to fall under the First Amendment:

[T]he Supreme Court . . . did not mean matters of transcendent importance, such as the origins of the universe or the merits of constitutional monarchy; they meant matters in which the public might be interested, as distinct from wholly personal grievances—which . . . are too remote from central concerns [of the First Amendment] to justify judicial interference with the employment relation . . . and casual chit-chat, which is not protected by the First Amendment at all.¹⁴⁸

Content is the most important factor to this determination, but context is also important. A topic may be a matter of public concern, and statements about the topic still may not be protected. For example, an employee who complains about secondhand smoke is not engaging in protected speech when his complaints are purely on his own behalf and in his own interest.¹⁴⁹Careful attention to the context also prevents plaintiffs from recharacterizing their speech more broadly after the fact. "[R]etrospective embellishment cannot transform personal grievances into matters of public concern."¹⁵⁰

The injection of the speech into a public forum may transform it from a personal grievance to a matter of public concern.¹⁵¹ But if an employee contacts the media, the press release or public comment does not always make the speech a matter of public concern.¹⁵² Nor must speech be made publicly in order to be protected.¹⁵³ In Givhan v. Western Line Consolidated School,¹⁵⁴ the Court held that even private speech could be protected in some cases.¹⁵⁵ The line between protected and unprotected speech in this area is a thin one and practitioners should scrutinize the facts with care.

Courts have recognized certain subject matters as "inherently of public concern."¹⁵⁶ Speech regarding illegal campaign activity, criminal misuse of public funds, wastefulness, and inefficiency in managing governmental entities falls in this category.¹⁵⁷ Even when such speech is uttered in private to the employee's supervisor, it retains its public character. But the argument that any activity that occurs within a government office is a matter of public concern has been routinely rejected.¹⁵⁸

First Amendment rights may apply when an employee refuses to speak.¹⁵⁹ In Langford v. Lane, an employee was fired after she refused to tell her employer what grievances she planned to air at a public meeting the next day. The worker's...