The Perils of Punishing Public Employees for Protected Speech: Applying Pickering v. Board of Education to Posts and Pins

• Publication year: 2014
• Citation: Vol. 27 No. 1
• Author: By James Brown, J. Scott Tiedemann and David A. Urban

The Perils of Punishing Public Employees for Protected Speech: Applying Pickering v. Board of Education to Posts and Pins

By James Brown, J. Scott Tiedemann and David A. Urban

James Brown

J. Scott Tiedemann

David A. Urban

What if a public school teacher of students with learning disabilities uses the word "retard" in a joke on Facebook, and her students and colleagues have access to the page? What if a police officer states on Facebook that he watches the movie Training Day to brush up on proper police procedure and posts: "If you were going to hit a cuffed suspect, at least get your money's worth"? (Training Day is a film in which Denzel Washington plays a nefariously corrupt veteran police officer responsible for mentoring a rookie.)

Disciplining employees for their expressive activity has long presented complex issues of First Amendment law for public sector management. In the age of social media, whether the platform is Facebook, Pinterest, email or texts, the challenge to employers is constant. Public employers can advance sound reasons for wanting to control employees' statements that can become public. Crude or offensive comments by public employees can easily become openly available on the Internet and place the public employer in a bad light. In the case of police officers in particular, inapt statements on social media can potentially impair the officer's ability to testify in court by providing material for cross-examination. Statements can also surface as evidence in civil litigation, for example, in a police brutality case. On the other hand, the question then arises of whether the First Amendment nonetheless safeguards a right to make these comments in social media.

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Free Speech Rights of Public Employees

When Public Employees Can be Disciplined for Speech

The First Amendment affords vast rights to freedom of expression. For public employees, however, these rights are diminished when asserted against a government employer. In Garcetti v. Ceballos (2006) 547 U.S. 410, the United States Supreme Court explained: "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." (Id. at p. 418.) However, a public employee keeps the "right...to speak as a citizen addressing matters of public concern." (Id. at p. 417.)

The United States Supreme Court has ruled that generally First Amendment protection attaches to speech if: (1) The employee's speech is on a matter of "public concern"; (2) The employee spoke as a private citizen and not a public employee (i.e., the speech is not pursuant to "official duties"); and (3) The employee's speech interest outweighs the agency's interest in efficiency and effectiveness. (See, e.g., Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1070-1071 [summarizing the primary elements of an employee free speech claim].)

Public Concern. The first element of the test, "public concern," is in many ways straightforward. What if an employee complains repeatedly about items such as not having the right type of coffee in the break room...