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Exercising Your Right to Free Speech as a Government Employee

Lauren Girardin

Government employees often work for the very institutions people aim to change through protest, direct action and other tools of social movements. These civil servants may agree with the calls for justice and systemic change but might not know if they’re free to march alongside their neighbors or share their personal opinions about an issue. Though they may want to stand up for what they believe in, they may think their government job prevents them from speaking out.

Let’s look at how government employees can serve while voicing their concerns about important social and political issues. (Disclaimer: The information in this article is not intended as legal advice. Consult a lawyer if you need legal advice.)

Isn’t freedom of speech protected in the Constitution?

It’s a common misconception that the First Amendment to the U.S. Constitution lets anyone say what they want, where they want, and when they want. Here’s what it actually says about free speech:

“Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment is only about what government can’t do — and, thanks to the 14th Amendment, also applies to state and local governments. In contrast, private individuals, organizations and employers are allowed to put limits on speech (a tangent we won’t tackle here).

When government is the employer, things get tricky. The Supreme Court clarified the free speech rights of public sector employees, deciding government agencies generally cannot fire or discipline an employee for speaking as a private individual about “matters of public concern.” The justices didn’t provide a clear definition of what counts as public concern and instead left it up to other judges to decide, case by case.

The Supreme Court also put limits on government employees’ freedom of speech. A government worker can be penalized for what they say in the course of doing their official job duties. Additionally, an employee’s free speech rights can be outweighed if what they say substantially interferes with government’s efficiency and performance. The courts have also upheld the constitutionality of the Hatch Act, which restricts certain political activities by most federal and a swath of state, D.C., and local government employees.

Further complicating matters, state and local laws, agency codes of conduct, equal employment opportunity (EEO) policies, union guidelines, whistleblower protections, discrimination and harassment laws, workplace safety regulations, and other regulations may also affect what a public sector employee can and can’t say.

How can government employees safely speak out about an issue?

Because of all the legal vagueness and complexity, it’s not always clear if a government employee will get in trouble for speaking out about an issue as a private individual on their own time. Even when someone should be entitled to free speech protections, their employer may overreact, misinterpret the laws, or use discipline as retaliation or intimidation.

To minimize unintended consequences, when speaking in person or online:

  • Be self aware. When emotions run high, it’s easy to lose perspective about the impression we make and the impact of what we say. Before speaking, draw a calming breath, take a break, or get feedback from a trusted friend.
  • Lead with empathy. Make an effort to understand other people’s experiences, perspectives and context. This doesn’t mean you have to agree with their views, but it can help you respond appropriately and effectively.
  • Criticize the idea, not the person. Sometimes people deserve criticism, but don’t make it personal if it’s not relevant. Personal attacks can put people on the defensive, stifle discussion, and make others less receptive to listening to what you have to say.
  • Be cautious about supporting prohibited actions. Something illegal can still be the right thing to do. If your conscience moves you to support something considered illegal, know there may be consequences.

Just because you can say it, should you say it?

While government employees can often speak out about important social or political issues on their own time in an unofficial capacity, it’s a different matter whether doing so is the right decision for you. When you speak as an individual, people might still complain about you to your employer. What you say can reflect on your credibility as a trustworthy government employee, particularly if you work in a public-facing role. Your off-the-clock speech can lead to unexpected outcomes at the office, like tensions with coworkers. You have to decide if the risks of speaking out are worth it for you.

These risks are why some people post disclaimers on social media such as “Opinions are my own” and “Retweets are not endorsements.” It can help make it clear that they are not speaking for or acting on behalf of their agency. But remember, a disclaimer won’t shield you if you say something that is not actually protected speech.

What can you do if you’re disciplined for what you believe is protected free speech?

When facing disciplinary action for what you said on your own time about a public issue, you might have protections. Double-check your agency’s code of conduct and employee policies to see whether there is a rule you may have broken. But keep in mind, just because your agency has rules against certain speech that doesn’t mean those prohibitions are legal. And just because your state or local government has laws restricting public worker speech that doesn’t mean those laws are constitutional.

If you are penalized by your employer for saying something you believe is protected free speech, check with your union (if you have one), a legal aid organization, or an employment lawyer about the appropriate next step for your specific situation.

Disclaimer: The information in this article is not intended as legal advice. Consult a lawyer if you need legal advice.

Lauren Girardin is a marketing and communications consultant, storyteller, and freelance writer based in San Francisco. She helps organizations engage their communities and tell their stories. Her website is laurengirardin.com and you can connect with her on Twitter at @girardinl.

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