Speech of Government Employees

2012-09-06 23:08:31

For many years, government employment was considered a privilege rather than a right, and, as a result, the government could place restrictions on employee speech that would be unconstitutional if applied to citizens. An oft-quoted description of this rule is that offered by Justice Holmes in McAuliffe v. Mayor of New Bedford: ‘‘The petitioner may have a constitutional right to talk politics but he has no constitutional right to be a policeman.’’ This doctrine began to erode in the 1950s and by 1967, the Court in Keyishian v. Board of Regents could firmly state that the doctrine allowing public employers to condition employment on waiver of constitutional rights had been rejected. Accordingly, public employees retain their First Amendment rights.

Nevertheless, the government as an employer has an interest in regulating employee speech that is greater than its interest in regulating citizen speech. The government must be able to control employee speech to ensure effective and efficient delivery of government services. Thus the task becomes determining which governmental restrictions on employee speech are permissible to serve the governmental purposes. The Supreme Court has attempted, with mixed success, to provide the government with traditional employer rights without unduly restricting employee First Amendment rights.

Protected Speech

To warrant First Amendment protection, employee speech must relate to a matter of public concern. Determining what is a matter of public concern has proven to be a difficult task for the courts. The speech must relate to issues of concern to the community and not to personal grievances of the employee or matters of internal office policy. To determine whether speech is protected courts must look to the content, form, and context of the speech. The speech need not relate to the employee’s job duties or the functioning of the government to be protected, although the Supreme Court has noted that government employees may be in a position to contribute importantly to public debate by virtue of the knowledge and information they possess.

Government Regulation Burdening Employee Speech

When government regulation broadly burdens the speech of government employees, the government must show that the interests of potential audiences for government employee speech and the free speech interests of the employees are outweighed by the impact of the speech on the operation of the government. Applying this test, the Supreme Court struck down a federal statute that barred federal employees from accepting honoraria for speeches or articles in U.S. v. National Treasury Employees Union. The Court rejected the government’s argument that the ban was necessary for government efficiency, finding it too broad to constitute a reasonable response to a legitimate concern about misuse of power. The court noted particularly that the ban applied even where the speech was unrelated to the employee’s service.

Employee Discipline Based on Speech

When the issue involves discipline of an individual employee for speech, the government’s burden of justification is less onerous. The Court in Pickering v. Board of Education held that the employee’s free speech rights must be balanced against the employer’s interest in ‘‘promoting the efficiency of the public services its performs’’ to determine whether an employer’s discipline of an employee for speech violates the constitution. The Court noted the importance of allowing government employees who have informed opinions on matters of public concern to speak without fear of employer retaliation. Employees can even make public statements critical of their superiors so long as they are not knowingly false or recklessly made and do not interfere substantially with the employee’s job performance or the employer’s operations. Because the test is generally applied after employee discipline for speech, the court will assess the level of disruption or threat of disruption caused by the employee’s speech, that is, did it interfere with his or her job performance or that of others, hamper employee discipline, or damage personal relationships in the workplace necessary to efficient functioning of the operation. If the damage or potential damage is sufficiently severe, discipline will be upheld despite the protected nature of the speech.

When the government claims that the employee discipline was based on reasons other than speech, the employee must show 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. 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.

Independent Contractors

These principles for determining the legality of government retaliation for employee speech have been applied to termination of independent contractors as well, Board of County Comm’rs v. Umbehr.

Government Employees and Political Activity

Although political speech has a high value under the First Amendment, restrictions on the political participation of government employees have been found constitutionally permissible. The federal Hatch Act, which in its earlier iterations barred virtually all federal employees from engaging in political management or political campaigns, survived constitutional challenge in United States Civil Service Commission v. National Association of Letter Carriers. Accordingly, similar restrictions by state and local governments are also constitutional. The Hatch Act does not bar employees from expressing opinions on political subjects and candidates, however. In addition, in 1993, the Hatch Act was revised to permit most federal employees to participate in political campaigns, with specified exceptions. However, with very limited exceptions, federal employees are still barred from running for partisan political office, campaigning while on duty, and soliciting political contributions.

Government employees are free to join political parties and cannot be discriminated against on the basis of their political affiliation unless they serve in high-level positions where party affiliation is a legitimate job qualification, Rutan v. Republican Party of Illinois. Elected politicians should be able to appoint high-level advisers and officials that agree with their policy agendas, but employees without such responsibilities are free to choose their party affiliation without fear of retribution from their employer.

In addition, government employees cannot be forced to subsidize political speech with which they disagree, either through union dues, Abood v. Detroit Board of Education, or direct political contributions, Acevedo-Delgado v.


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

  • Abood v. Detroit Board of Education, 431 U.S. 209 (1977)
  • Acevedo-Delgado v. Rivera, 292 F.3d 37 (1st Cir. 2002)
  • Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996)
  • Hatch Act, 5 U.S.C. Section 7321, et seq Keyishian v. Board of Regents, 385 U.S. 589 (1967)
  • McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892)
  • 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)
  • Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)
  • United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 538 (1973)
  • U.S. v. National Treasury Employees Union, 513 U.S. 454 (1995)

See also Abood v. Detroit Board of Education, 431 U.S. 209 (1977); Matters of Public Concern Standard in Free Speech Cases; Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274 (1977); Pickering v. Board of Education, 391 U.S. 563 (1968); Political Patronage and First Amendment; Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)