Public Employee Speech Rights: Survey of Recent Trends
| DOI | 10.1177/0734371X18816752 |
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| Author | Joseph Mead |
| Subject Matter | Articles |
research-article2018
Article
Review of Public Personnel Administration
2020, Vol. 40(3) 384 –404
Public Employee Speech
© The Author(s) 2018
Article reuse guidelines:
Rights: Survey of Recent
sagepub.com/journals-permissions
https://doi.org/10.1177/0734371X18816752
DOI: 10.1177/0734371X18816752
journals.sagepub.com/home/rop
Trends
Joseph Mead1
Abstract
Public employees have the right to free speech in their personal capacities, but that
right is tempered in many instances by the interests of their governmental employers.
This piece provides an overview of the speech rights of public employees, highlighting
approaches taken in recent appellate decisions. The piece ends with practical
suggestions for public employers.
Keywords
discipline, legal/constitutional issues, local government HRM, politics and merit, state
government HRM
Public employees throughout the country often face the risk of discipline—even ter-
mination—for their speech on controversial matters. Advances in mass communica-
tion and social media allow for off-hand, intemperate comments that once might have
evaporated into the wind, to be recorded in perpetuity and broadcasted to the world. At
the same time, the United States Constitution guarantees public employees a measure
of free speech protection for their personal speech. In a leading decision, the Supreme
Court held that the First Amendment prohibited the government from retaliating
against an employee for private speech on matters of public concern unless the inter-
ests of the government “as an employer, in promoting the efficiency of the public
services it performs through its employees” outweigh the “interests of the [employee],
as a citizen, in commenting upon matters of public concern” (Pickering v. Board of
Education of Will County Illinois High School Dist. 205, 1968).
1Cleveland State University, OH, USA
Corresponding Author:
Joseph Mead, Cleveland State University, 2121 Euclid Ave., UR317, Cleveland, OH 44115, USA.
Email: J.Mead@csuohio.edu
Mead
385
This Pickering balancing test has been repeatedly applied by courts over the past 50
years, yet time and repetition have not resolved the persistent uncertainties about how
to strike such a balance between government interests and employee speech (Hilton,
2017). One of the recurring problems is articulating which interests of government are
properly considered on the government’s side of the balance. In other contexts, a lis-
tener’s reaction to speech—even if it triggers a hostile mob—is simply not a valid
reason for the government to silence speech. To hold otherwise, the Supreme Court
has repeatedly instructed, would be to allow a “heckler’s veto” (McCullen v. Coakley,
2014). In the context of employee speech, however, courts have struggled to articulate
a consistent rationale or framework for evaluating the extent to which community or
customer protests to the speech are valid reasons for punishing an employee.
This article begins to fill the holes that trip up courts in Pickering’s balancing test
by surveying the state of the law and proposing a framework for evaluating the gov-
ernment’s interests in silencing its employees. After reviewing the basics of free
speech of government employees, I discuss how federal courts have applied the
Pickering balancing test, with special attention paid to the factors that courts consider.
Finally, I survey different approaches that courts have used to weigh community out-
rage in the balancing test. I conclude with a discussion of specific implications for
public employees and their managers.
Overview of Public Employee Speech Rights
For more than 50 years, the Supreme Court has consistently held that government
employees do not bargain away all speech rights. Yet, at the same time, the govern-
ment has greater latitude to censor the speech of its employees than it has over private
citizens.
At the dawn of the 20th century, the prevailing judicial view was expressed by
Justice Holmes’ quip that speakers “have a constitutional right to talk politics, but . . .
no constitutional right to be a policeman” (McAuliffe v. City of New Bedford, 1892, p.
220). But by the middle of the century, a combination of increased public sector
employment, more vigorous free speech enforcement in other areas, and particularly
unreasonable government restrictions led to the rejection of Holmes’ dictum (Wieman
v. Updegraff, 1952). As the Supreme Court would summarize a half-century later, “[t]
here are some rights and freedoms so fundamental to liberty that they cannot be bar-
gained away in a contract for public employment” (Borough of Duryea v. Guarnieri,
2011, p. 2493).
But, in fact, public employees do bargain away some expressive rights; public
employees do not enjoy the virtually unfettered right to speak that nonpublic employee
citizens enjoy. The Supreme Court has imposed several key limits on public employee
speech that simply do not apply to the citizenry at large.
First, when a public employee speaks as part of that employee’s official duties,
there is no constitutional protection (Garcetti v. Ceballos, 2006; Roberts, 2015). The
government has the right to control what it—as its own entity—says, and because
government officers are required to actually carry out the speaking, it follows that the
386
Review of Public Personnel Administration 40(3)
government has the right to control what its officers say when they are speaking on its
behalf. At the same time, however, public employees often can talk at work and about
work without having that speech fit into Garcetti’s exception for speech made pursuant
to one’s job duties (Lane v. Franks, 2014).
Second, certain categories of high-level, policymaking employees have severely
diminished (or, perhaps, no) free speech rights. This exception is derived from a pair
of Supreme Court cases that, while holding most patronage dismissals were unconsti-
tutional, recognized there were certain high-level employees who could be selected for
their political affiliation (i.e., political affiliation discrimination in hiring decisions;
Branti v. Finkel, 1980; Elrod v. Burns, 1976). Lower courts have extended this reason-
ing to employee speech cases, reasoning “the government’s interest in appointing
politically loyal employees to certain positions converges with its interest in operating
an efficient workplace when dealing with policymaking employees because loyalty by
those employees is an essential requirement for the efficient functioning of the work-
place” (Rose v. Stephens, 2002, p. 923). Put differently, the same employer need for
trust in certain employees that justifies political affiliation discrimination also justifies
punishing those employees’ speech.
Third, employees enjoy First Amendment protection only for unofficial speech that
touches on a matter of public concern. In contrast, when dealing with a member of the
general public, the government lacks the power to restrict even expression that is friv-
olous, petty, or pornographic, no matter how unconnected to any public debate, unless
the government can show a compelling reason for the restriction or the speech fits into
one of a small number of categories of speech that have been regulated historically
(such as fraud, perjury, or obscenity). Public employees, however, do not have any
protection for speech unless they can show it relates to an issue of public concern, a
much higher standard than that applicable to the public at large.
The distinction between employee and citizen speech is why the police officer who
starred in a pornographic video while in uniform could not be prosecuted criminally,
but could be fired from his public job (San Diego v. Roe, 2004).
Meeting these threshold conditions—speech is not part of one’s job duties,
employee is not a policymaking or confidential employee, and speech is on a matter of
public concern—is only enough to get the employee to a balancing test between the
government’s interest as employer and the employee’s right to speak. In weighing this
balance, courts have identified a number of considerations that are “relevant,” but
failed to assign concrete weight to the degree of influence they have on the outcome.
This failure is by design: as the Supreme Court put it, “Because of the enormous vari-
ety of fact situations in which critical statements by . . . public employees may be
thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either
appropriate or feasible to lay down a general standard against which all such state-
ments may be judged” (Connick v. Myers, 1983, p. 154). By failing to lay down a
bright-line rule, the balancing test requires a fact-specific weighing of competing
interests, and the Court expressly left for lower courts to decide how different interests
should be weighed in each new different factual situation. The balancing test gives
lower courts considerable flexibility in assessing each new situation, but leaves both
Mead
387
employer and employee with a measure of unpredictability in how a court might weigh
their respective interests and, as a result, whether the Constitution was violated.
Underpinnings of Public Employee Speech Rights
“What is it about the government’s role as employer that gives it a freer hand in regu-
lating the speech of its employees than it has in regulating the speech of the public at
large?” (Waters v....
To continue reading
Request your trial