Under the First Amendment, we are afforded the right to speak freely regarding matters that are important to us without infringement by the Government. As explained in a recent article on Private Employee Rights, the First Amendment’s guarantee of free speech does not extend to employees working in a private workplace. For those working for the Government, however, the right to free speech does not end at the door to the public office.
In the last few weeks, numerous lawsuits have been filed across the country on behalf of public employees who were fired for comments or posts made on their social media accounts about hot-button political or cultural issues. Ultimately, the courts handling those suits will need to determine whether the public employee’s speech was protected under the First Amendment and, if so, whether the public employer’s interest in a positive and efficient workplace outweighs the public employee’s right to free speech. This is a complex and tricky balancing act and, for that very reason, it is more important now than ever that public employers and employees understand their respective rights when it comes to political speech in and around the public workplace.
The current law protects comments or speech by public employees so long as:
- They are not speaking in their official capacity
- The comments are made on a “matter of public concern”
- It does not negatively impact the operations of the employer so much that it outweighs the employee’s right to “free speech.
Determining if an employee is acting in their official capacity can be fairly easy — anyone in uniform, on duty, or speaking as part of their normal job duties and functions is doing so in their official capacity, and their speech is not protected by the First Amendment. By contrast, a public employee who comments or posts on a personal social media page after clocking out and going home does have some First Amendment protection. There are, however, limits.
Determining whether a public employee’s statements or social media posts relate to a “matter of public concern” might also seem simple, but with the constant discourse on social media, ever-evolving ways for employees to stay connected, and the interweaving of political and cultural subjects, the line between personal and public concerns can be a very blurry one.
Courts have held that “matters of public concern” are just that — such matters do not include workplace concerns specific only to the speaking employee, or to statements that are not pertinent to anyone outside the public organization or employer.
Seemingly straightforward, this definition can be tricky to apply in the real world. Take, for example, a college professor who is of Arab descent and teaches Middle Eastern Culture and Politics. What if that professor were to complain that they were denied tenure because of their ethnicity and political views, participate in student protests condemning the treatment of Palestinians, and/or make comments critical of Israel’s actions in Gaza on the professor’s private social media accounts? Determining what is and what is not protected speech in such a situation would be tricky and subjective, leaving both the public employer and employee at legal risk.
Even if a public employee’s statements or social media posts are made in a personal capacity and on a matter of public concern, they are not afforded absolute protection. The Supreme Court has recognized that public employers may regulate otherwise free speech if that speech has a sufficiently negative impact on the positive and efficient operations of the government employer. Factors that the courts may consider in balancing the employee’s right to free speech against the public employer’s interest in managing its workforce include whether the speech impairs discipline or harmony among coworkers, disrupts close working relationships requiring loyalty and confidence, interferes with the employee’s job performance, or undermines the government employer’s mission. The time, place, and manner of the speech, as well as whether the speech was directed to the public or made internally, are also relevant considerations.
With all of this subjectivity and the myriad of issues and factors to be considered, public employers faced with a politically divided or contentious workforce would be well advised to:
- Review and update the agency’s policies on prohibited conduct, use of employer-provided technology, anti-harassment, and use of social media to ensure that the rules for employees are as clear as possible
- Be cautious, investigate and develop the facts, and consider all the pertinent factors before disciplining or terminating an employee based upon that employee’s exercise of “free speech”
- Train management concerning the scope of free speech protections and how to respond to problematic speech or social media activity.
Likewise, public employees should:
- Understand the legal framework governing their speech in the public workplace
- Read and be familiar with their employers’ policies on conduct in the workplace, social media, anti-harassment, etc.
- Exercise caution, judgment, and discretion before making a potentially controversial, offensive, or inflammatory statement or social media post that may negatively impact their workplace.
Whether public employer or employee, those with questions or who need help handling a workplace speech issue should contact an experienced attorney.
