III. Free Speech in the Public Workplace

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

III. FREE SPEECH IN THE PUBLIC WORKPLACE

A. Current Legal Framework for Establishing Protections for Employee Speech

1. Pickering Balancing Test

The established framework for evaluating public employees' claims involving their First Amendment right to free speech took shape in Pickering v. Board of Education?⁷⁸ Pickering was a high school teacher fired by the board of education after he wrote a letter to a local newspaper criticizing the board. The letter addressed the board's handling of a bond proposal and its allocation of financial resources between educational and athletic programs. The Supreme Court acknowledged both the retained rights a public employee has to comment on matters of public interest as well as the governmental interest as an employer in regulating the speech of its employees. The Supreme Court determined that only by balancing "the interests of the [employee], as a citizen, in commenting on matters of public concern" against "the interest of the State, as an employer, in promoting the efficiency of public services it performs through its employees" can the constitutional protection afforded speech be determined.⁷⁹ The balance on the facts presented led the Court to determine that the school board had no greater interest in "limiting teachers' opportunities to contribute to the public debate . . . than its interest in limiting a similar contribution by any member of the general public." ⁸⁰ The Court noted that the teacher's statements did not adversely affect his work relationship, did not impede the teacher's performance of classroom duties, and did not interfere with the operation of the schools generally.

2. Garcetti and Progeny

Conversely, speech that occurs in the course of the performance of an employee's job duties may adversely impact working conditions such that the government has a much greater interest in regulating the speech. The Supreme Court has repeatedly reinforced that within the Pickering balancing test, the primary governmental interest to be balanced is "effective functioning of the employer's enterprise." In Garcetti v. Ceballos, the Supreme Court defined the nature of this interest further to determine that while the government has "broader discretion to restrict speech when it acts in its role as employer, . . . the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations." ⁸¹ Importantly, the Court reiterated the fundamental public trust that attaches to public employment and acknowledged the resulting conflict created by speech by public employees that "express[es] views that contravene governmental policies or impair the proper performance of governmental functions." ⁸²

The Court examined whether Ceballos engaged in protected speech when he wrote a disposition memo that recommended dismissal of a case on the basis of purported governmental misconduct. The Supreme Court characterized Ceballos's memo as speech pursuant to his job duties, noting "Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisory about how best to proceed with a pending case." ⁸³ With this distinction, the Court refined the Pickering landscape to find 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." ⁸⁴

Where Garcetti addresses the concept of the workplace with regard to an employee's duties, the Supreme Court has held that private speech in the workplace that does not have a disruptive effect may enjoy constitutional protection. In both Givhan v. Western Line Consolidated School District⁸⁵ and Rankin v. McPherson,⁸⁶ the Supreme Court defined the boundaries of protection of the First Amendment as to private conversations. In Givhan, an employee expressed concerns to the school principal regarding what she perceived as racially discriminatory policies.⁸⁷ The Court afforded these statements protection and determined that when the content of public statements is the primary determination of protection to be afforded such public speech, evaluation of private speech requires further consideration of the manner, time, and place of the speech in balancing the protection of inter-ests.⁸⁸ In Rankin v. McPherson, a clerical employee was terminated after another employee overheard him negatively discussing policies of the Reagan administration and commenting on the attempted assassination of President Reagan.⁸⁹ These comments were deemed unlikely to have an adverse impact on the operation of the employer's operations and fell within the protections of the First Amendment.⁹⁰

3. Connick v. Meyers

Another significant limitation on the protection afforded public speech by public employees occurs when speech does not impact matters of public concern. The Supreme Court articulated this boundary in Connick v. Meyers,⁹¹ a case involving a district attorney facing transfer who circulated a questionnaire to other employees seeking input on working conditions, such as the transfer policy, office morale, the need for a grievance committee, the level of confidence employees had in supervisors, and whether employees felt pressured to work in political campaigns. The resulting disruption within the workplace led to the termination of the attorney.⁹² The Court considered the "content, form and context of the given statement" and determined that the employee's speech did not relate to any matter of political, social, or other concern to the community, but rather to personal concerns as an employee.⁹³

The following examples concern personal grievances that may reflect complaints about working conditions out of perceived self-interest that fall outside the scope of First Amendment protection under Connick:

• complaints regarding the dangers of secondhand smoke in the workplace ⁹⁴
• complaints about a fellow employee's attendance ⁹⁵
• criticism of a collective bargaining proposal ⁹⁶

B. Matters of Public Concern

The initial threshold to determine whether employee speech is protected under the First Amendment is whether the speech relates to a matter of public concern. Evaluation of this aspect of speech is made based on the content, form, and context of the speech.⁹⁷ Review of the protection of speech from a content perspective tends to focus on the subject matter of the speech and relation to public interests. Although the content of speech is frequently deemed the most important aspect in evaluating speech, the context in which speech is made may impact the level of protection afforded such speech.⁹⁸The context of speech may reveal a speaker's motivations as being personal or not directed toward matters of public concern.⁹⁹ For example, complaints made in response to pending disciplinary action, even when they touch on matters of public concern, may nonetheless fall outside of the protections of the First Amendment if motivated largely by personal interest.¹⁰⁰

The effect of the "form" of speech on its protection under the First Amendment is commonly reflected in the public nature of the expression. An employee's speech at a public meeting as a concerned citizen is generally protected.¹⁰¹ Public disclosure of speech can support a finding that the public had an interest in the speech and that the employee sought to inform the public.¹⁰² For example, an employee's criticism at city council meetings and in a television interview of the city's decision not to give police officers an annual raise was found to be "specifically and purposefully directed to the public" and to pertain to a matter of public concern.¹⁰³ In contrast, a nurse who issued a press release critical of a hospital's privatization did not address an issue of public concern, based on the employee's solicitation of media coverage.¹⁰⁴

C. Governmental Interests in Support of Restriction on Employee Speech

Among the strongest of employer interests balancing against employee's free speech is the employer's interest in providing efficient public service.¹⁰⁵ This interest encompasses a number of different aspects: (1) the need for harmony in the workplace; (2) the closeness of the working relationship between the employee and coworkers and the potential impact that the speech in question might have on that relationship; (3) the time, place, and manner of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech interfered with the employee's ability to perform work duties.¹⁰⁶ When speech has a disruptive effect on the workplace under any such considerations, the employer has a greater interest in restricting or responding to such speech.

The extent to which disruption must actually ensue or be proved has been a matter of examination by the courts. Generally, the courts have held that an employer need not show actual disruption from an employee's speech, only potential disruption sufficient to warrant discipline or other action in response to speech. As one court explained, "if [the] employer's prediction of disruption to its operations is reasonable, potential disruptiveness is enough to outweigh value of speech." ¹⁰⁷ The greater the public concern of the matter addressed, the greater the showing of disruption the employer must make to warrant acting against an employee's speech.¹⁰⁸ Thus, in order to justify taking action against employee speech on a matter of public concern, an employer may need to establish that (1) the employer's prediction of disruption is reasonable, (2) the potential disruptiveness is enough to outweigh the value of the speech, and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech.¹⁰⁹

The nature of the public work environment can affect application of these principles. Public safety workplaces generally are subject to stricter regulation of...