Legal Updates


January 2, 2019

A challenge unique to public employers is navigating constitutional constraints. These constitutional constraints apply to local governments carrying out their duties and responsibilities, including employment-related decisions involving the exercise of free speech rights. Understanding under what circumstances a public employer may take action as to employees exercising their constitutional rights is critical.

The First Amendment to the United States Constitution states “Congress shall make no law … abridging the freedom of speech. . ..” Free speech protection extends to public employees utilizing their rights in the course of their employment. This is because a “public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Connick v. Myers, 461 U.S. 138, 140 (1983). This right, however, is not absolute.

The Supreme Court of the United States has recognized that government has an interest in ensuring that it can efficiently carryout services. In order to evaluate the competing interests between employers and employees, the Supreme Court created a test to determine when a public employer violates an employee’s free speech rights. Pickering v. Board of Education of Township High School District 205, Will Cty., Illinois, 391 U.S. 563 (1968).

In Pickering, a teacher was discharged after he sent a letter to the local newspaper speaking out against the school board’s decision to increase taxes. Id. at 566. The Supreme Court ultimately concluded that public employees enjoy constitutional protections for speech that is of a public concern. The Court ruled that if an employee speaks on an issue of public concern, courts must then balance the interests of the employee as a private citizen with the interests of the government “as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568.

Supreme Court cases subsequent to Pickering have refined how far employee free speech protections extend. In Connick v. Myers, 461 U.S. 138 (1983), a disgruntled employee distributed a survey to her coworkers concerning an office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work on political campaigns. Id. at 141. She was fired for insubordination. Id. at 141.The Court grappled with the issue of when speech rises to the level of a “public concern.” To clarify when speech rises to the level of a “public concern,” the Court concluded “content, form, and context of a given statement, as revealed by the whole record” determine whether the speech is of a “public concern” and thus afforded First Amendment protection. Id. at 147-148. The Court found most of the survey questions in this case were not a “public concern.” The Court concluded that questions relating to the “confidence and trust that Myers’ coworkers possess in various supervisors, the level of office morale, and the need for a grievance committee” were mere extensions of Myers’ dispute with her supervisor and did not rise to the status of “public concern.” Id. at 148. These matters were not a matter of “public concern” because the point of the survey was not to evaluate the office’s performance, but to create conflict with her supervisors. Simply put, the survey reflected one person’s dissatisfaction with her superiors.

However, the Court did find that the survey question relating to feeling pressure to participate on political campaigns could be viewed as a public concern. Id. at 149. Since one of the questions related to speech of a public concern, the Court applied the Pickering balancing test to see if Myers had been properly terminated. The Court found that Myers’ survey did not impact her work performance, but it did cause a rift between her and her supervisors. Since she worked in a district attorney’s office, where close working relationships were essential to carrying out the function of the office, the Court found Myers was legally terminated for her actions. Id. at 151-152. The Court did warn that employers may have to make a stronger justification for termination if the speech is more of a public concern.

The Supreme Court provided further clarification regarding free speech protections for public employees in Garcetti v. Ceballos, 547 U.S. 410 (2006). In this case, an assistant district attorney wrote a memo concerning a criminal case. The employee’s supervisor did not agree with the contents and recommendations of the memo. After sharing the memo with his supervisor, the employee was transferred to a different job and was passed over for a promotion. Id. at 414-415. The Court clarified that the “First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.” Id. at 424. Speech must be as a citizen, rather than as an employee, for First Amendment protections to apply. Since the memo only related to the individual’s duties as an assistant district attorney, as opposed to speech as a private citizen, the balancing test set forth in Pickering did not apply.

The three cases referenced above have refined when employees may be protected from adverse employment actions related to their speech. In summary, free speech protections might apply if an employee speaks as a citizen and the speech is on a matter of public concern. If both elements are present, an employer may still take adverse employment action but, only if, the employer is able to establish the need to do so is to promote efficiency of the public services it performs and those interests outweigh the interests of the employee speaking as a private citizen. It is also important to note that public employee free speech cases will always be fact intensive in determining whether free speech protections apply.

For questions regarding this article or the free speech rights of public employees in general, please contact the author, Attorney Rick Manthe (email:; telephone: 844.626.0907 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.


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