Disciplining Public Employees for Expressive Activity

A public employee’s right to free speech under the First Amendment is not unlimited and employers have the right to discipline employees for expressive activity under certain circumstances (Pickering v. Board of Education, 391 U.S. 563, 1968). The employer has an interest in ensuring that its employees do not undermine its operations or interfere with accomplishment of its objectives. At the same time, employees do not give up their constitutional rights when they accept government employment. Indeed, government employees may play a particularly important role in enlightening the public about governmental operations by contributing to public debate and alerting the public about potential wrongdoing. Thus, the courts have developed a test for determining when public employers can discipline their employees for expressive activity.

The threshold requirement for protected speech is that it must relate to a matter of public concern. If speech relates to an employee’s private grievance, discipline based on the speech does not implicate the First Amendment. (For further information, see Matters of Public Concern Standard in Free Speech Cases.) In addition, even if the speech addresses matters of public concern, when the employee’s speech rights are outweighed by the disruption that the speech causes to the operations of government, the employer can discipline the employee for speech. The more central the speech is to matters of concern to the public, the more disruptive to government operations it must be in order to justify discipline. The impact of the speech on discipline, working relationships, work performance, and government operations is a significant consideration in weighing the government’s interests (Rankin v. McPherson, 483 U.S. 378, 1987). In the 2005 term (Garcetti v. Ceballos, 361 F.3d. 1168, 9th Cir. 2004, cert. granted, 125 S. Ct. 1395, 2005), the Supreme Court had to decide whether an employee who brings to light suspected wrongdoing in speech required by job duties is protected from discipline, thus further refining the Balancing Test.

In some cases, the government disputes that discipline was motivated by the employee’s protected speech, asserting a lawful basis for the discipline. To prevail on a constitutional claim, the employee must prove that the protected speech was a motivating factor in the employer’s decision to discipline (Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 1977). The employee must show that the person who made the decision was aware of the speech. In addition, proof of actual motivation is necessary; this can involve evidence such as the timing of the discipline in relation to the speech, employer unhappiness with the speech, or the pretextual nature of the employer’s asserted reason for the discipline. If the employee proves that the speech motivated the employer, the employer can avoid liability by showing that it would have disciplined the employee for legitimate reasons even if the employee had not engaged in the protected speech. When there is disagreement about what the employee actually said, the employer may rely on what it reasonably and in good faith believes was said in deciding whether to discipline the employee (Waters v. Churchill, 511 U.S. 661, 1994). To ensure that it acts reasonably, the wise employer will investigate prior to discipline when employee statements may have First Amendment protection.

 ANN C. HODGES

References and Further Reading

• Deskbook Encyclopedia of Public Employment Law, Malvern, PA: Center for Education and Employment Law, 2005.
• Hudson, David L., Jr. Balancing Act: Public Employees and Free Speech, First Amendment Center, 2002.
• Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech, vol. 2, Eagan, MN: Thomson/West, 2005.

Cases and Statutes Cited

• Garcetti v. Ceballos, 361 F.3d. 1168 (9th Cir. 2004), cert. granted, 125 S. Ct. 1395 (2005)
• Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)
• Pickering v. Board of Education, 391 U.S. 563 (1968)
• Rankin v. McPherson, 483 U.S. 378 (1987)
• Waters v. Churchill, 511 U.S. 661 (1994)

See also Matters of Public Concern Standard in Free Speech Cases; Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977); Pickering v. Board of Education, 391 U.S. 563 (1968); Rankin v. McPherson, 483 U.S. 378 (1987); Speech of Government Employees