Staff Have a Right to Political Expression: But states may limit certain activities.

• Position: FREE SPEECH

Legislatures have an interest in ensuring that nonpartisan staff refrain from overt political activities that may diminish their credibility and effectiveness. But staff also have an "inviolate" right to express themselves politically.

This conflict has led to a robust body of case law. Several courts have found that prohibiting public employees from engaging in certain political activities does not violate the First Amendment if the state can show there is a "sufficiently compelling interest" in doing so. Compelling interests include protecting institutional integrity; maintaining efficient operations, discipline and employee morale; and discouraging improper influences, abuses of position and the appearance of bias.

States, however, do not have limitless authority to penalize employees for expressing partisan sentiment. Courts have rejected restrictions they consider overbroad or too vague. Limits on political activity also must not infringe on a staffer's state constitutional rights, which may extend beyond those established under federal law.

The First Amendment, state constitutions, statutes, chamber rules, administrative regulations, policies, employee manuals and employment contracts all dictate rules of conduct, some of which may limit partisan political activities by staff.

Agency policies may prohibit nonpartisan staff from signing a petition involving a matter before the legislature, for example, unless an applicable statute or state constitutional provision protects the employee's right to do so.

Eighteen states have laws protecting the right of staff to participate in political...