Last month, I wrote about the importance of government employees and the Hatch Act. Today, I wanted to spend some time talking about Freedom of Speech and what kind of protections public sector employees are entitled to under the First Amendment. Over the years, Courts have made a clear distinction between the rights entitled to a private citizen, and a public sector employee. With the rapid development of social media tools, the lines have been blurred between professional and personal life. Now, more important than ever before, Freedom of Speech’s core test of “a matter of public concern,” is being used and challenged to decide what kind of protections are guaranteed to public sector employees.
Although there is a clear legal precedent to Freedom of Speech for public sector employees, the digital age has presented numerous challenges as to how to best define Freedom of Speech for public sector employees. This post will briefly explore the First Amendment in the public sector, how public sector employees are protected, and a brief look at social media and the First Amendment for public sector employees.
Overview of the First Amendment in the Public Sector
The First Amendment Center has a great report overviewing the history, challenges and background of the First Amendment and the applications for public sector employees. The report, Balancing Act: Public Employees and Free Speech, by David L. Hudson Jr, is a fantastic resource if you are looking for an overview of public sector employees and First Amendment rights.
David provides numerous examples showing the legal history of public employees First Amendment rights. Cases included McAuliffe v. New Bedford, which John McAuliffe was dismissed from his police officer position for “talking politics” in 1892. What was interesting about the First Amendment Center’s report, is how the report shows a clear legal framework and progression towards protections today. The report stated that in the 1960’s, greater protection was given to public sector employees, dismissing previous rulings and reasoning.
One of the most important case came from Pickering v. Board of Education. In this case, Marvin Pickering, a school teacher in Illinois, was upset at how the Board of Education had distributed a recent bond, placing a strong emphasis on athletics rather than education. Pickering wrote a scathing letter to the board and was subsequently fired. Pickering eventually won the case that he was wrongfully terminated, and was protected by the First Amendment. He was reinstated to his previous position. Pickering’s case has served as one of the most important cases for public sector employees and First Amendment rights.
How Are Public Sector Employees Protected?
Following the Pickering case, another landmark case was Connick v. Myers. This controversy took place when Myers refused to be transferred to a new position by Connick. Myers distributed a survey to peers attempting to validate her resistance, Connick warned Myers not to distribute the survey. Myers decided to sue in belief that her First Amendment rights had been violated, the case went to the Supreme Court, Connick ultimately won. As I was reading through the Connick case, I was curious why this case became related to Freedom of Speech. The ruling in lower courts was that the survey distributed presented a “matter of public concern,” hence, being protected under the First Amendment. After the case, new restrictions arose for a public sector employee to present a First Amendment claim, David Hudson states in the report that in order to bring forth a First Amendment case a public sector employee must:
- Show their speech addresses a matter of public concern
- Show their free-speech interests outweigh their employer’s efficiency interests
These two bullet points are the “Pickering-Connick Test.” In the Connick Case, the Supreme Court states, “relating to any matter of political, social, or other concern to the community,” to describe a “matter of public concern.” The Supreme Court also continues to explain, “whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Essentially, the Supreme Court has stated that a “matter of public concern” is open-ended, and needs to be looked at contextually. The second part of the test is also intriguing. David states that in order to pass the second part of the test, the court must look at if the speech:
- Impairs discipline or harmony among co-workers
- Has a detrimental impact on close working relationship for which personal loyalty and confidence are necessary
- Interferes with the normal operation of the employers business
As we have seen, government employees are more restricted, and government entities can impose tighter restraints on employees, that would be entirely unconstitutional for private sector counterparts.
Social Media Context
From reading through the report and taking a look at various articles across the web, the challenge for the First Amendment is applying the old with the new. Social media is now pervasive in our society. “Liking” a post, retweeting content, sharing photos, blogging, all would seem to challenge how public sector employees are traditionally protected under the First Amendment. The law still seems to be undefined in regard to social media. There are a lot of very intriguing cases that have been developing, and will challenge traditional views of Freedom of Speech for public sector employees. The Washington Post reports that Judge Raymond A Jackson of the U.S. District Court in Newport News dismissed a wrongful termination case, in which employees claimed they had been fired for “liking” a post of a rival candidate:
Judge Jackson’s latest headline-making ruling, however, seems both less justified and less likely to withstand scrutiny by higher courts. On April 24, he dismissed a lawsuit by six former employees of Hampton, Va., Sheriff B.J. Roberts, who had claimed that the sheriff had fired them because they supported his opponent in the 2009 election, which Mr. Roberts won. Among the allegations was that Mr. Roberts retaliated against deputy Daniel R. Carter Jr. because the latter had “liked” the Facebook page of candidate Jim Adams. According to Mr. Carter, this violated his constitutional rights, because clicking the “like” button is a form of expression protected by the First Amendment.
The internet is truly transforming how freedom of speech is traditionally viewed, and taking old laws and applying them to a new context. Some great resources can be found below:
- Is Facebook ‘speech’ protected?
- Is “Liking” on Facebook protected free speech?
- Facebook & Free Speech: Govies Fired for Like
- Lawyer who criticized gay student in blog ordered to pay $4.5M
- Technology takes freedoms forward, law catches up
Outside of social media, one case I am interested to keep following on First Amendment rights is from the tell-all book on the Osama Bin Laden raid, No Easy Day, the First Amendment Center states:
The Pentagon’s top lawyer has informed the former Navy SEAL who wrote a forthcoming book describing details of the raid that killed Osama bin Laden that he violated agreements to not divulge military secrets and that as a result the Pentagon is considering taking legal action against him.
The general counsel of the Defense Department, Jeh Johnson, wrote in a letter sent yesterday to the author that he had signed two nondisclosure agreements with the Navy in 2007 that obliged him to “never divulge” classified information.
“This commitment remains in force even after you left the active duty Navy,” Johnson wrote. He said the author, Matt Bissonnette, left active duty “on or about April 20, 2012,” nearly a year after the May 2011 raid.
By signing the agreements, Bissonnette acknowledged his awareness, Johnson wrote, that “disclosure of classified information constitutes a violation of federal criminal law.” Johnson said it also obliged Bissonnette to submit his manuscript for a security review by the government before it was published. The Pentagon has said the manuscript was not submitted for review, although it obtained a copy last week.
The progression of the First Amendment and future applications are fascinating to consider, and it will be interesting to see how the laws progress for public sector employees. Technology has been the driving force to updating legal precedents to make sure that the constitution is upheld and modernized for the digital age.
This post is brought to you by the GovLoop Communications & Citizen Engagement Council. The mission of this council is to provide you with information and resources to help improve government. Visit the GovLoop Communications and Citizen Engagement Council to learn more.
 |
 |
Another critical point to remember regarding First Amendment rights in the private sector is the distinction between “At Will” and contractual employment. The fast majority of employees in the provate sector are “At Will” and can pretty much be erminated at any time with no requirement for the employer to provide a reason. Although some employers may be foolish enough to give a reason which places them in violation of one or more anti-discrimination laws, most will simply shut up. The burden of proof then falls on the employee to demonstrate the termination was not legal. Also, lower courts have occaisionally ruled the First Amendment applies to government and not private sector organizations or individuals. I do not beleive the Supreme Court has ruled on this but in general At Will employees terminated for expressing opinions, political or otherwise, have found little protection in the courts. Contractual employees, including those covered by a collective bargaining agreement, may have a little more protection. Employers generally must demonstrate cause for termination which meets one or more clauses within the contract or buy it out.
Another awesome post, Pat!
Govies need to better understand that the social media aspect of free speech is still largely untested and evolving in the lower courts (district level). It will be interesting to see whether the Court of Appeals throws out Judge Jackson’s questionable ruling that a “Like” on Facebook is not protected free speech — which I think most reasonable people disagree with.
Although not always easy to follow, I believe the standard for government employees should be while at work, during work hours, on work assignment, etc., restirctions apply. When on one’s own time, free speech should apply. A person should not use/connect their position or organization to promote a personal political position. I would support protections for “liking” on Facebook as it would generally be outside of the workplace. I see it as little different from a person signing a petition or giving a political donation.
Very informative. Thank you.