PUBLIC EMPLOYEES’ FREE SPEECH RIGHTS, LTD

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The First Amendment states that “Congress” shall make no laws abridging the freedom of speech.  Because its protection was expanded by operation of the 14th Amendment, “Congress” may now be read to mean the government generally – federal, state, or local.  But still, it takes some form of governmental action for the constitution (by opposition to statutes) to apply.

This gives public employees grounds to attack adverse employment actions against them that their private-sector brethren do not have.  Since their employers are the government, they are directly protected by the constitution.  But that armor is not always as mighty as it sounds.

Let us return to free speech for example.  It will surprise no-one in the private sector that bad-mouthing your boss might get you fired.  On the other hand, public employees, flushed with constitutional rights, might think that being fired to speaking out would result in damages in their favor.  That is not always the case.

To start with, the courts will distinguish when the government acts as an employer, much as a private one might, and when it acts as a sovereign, when constitutional obligations are at their strongest.  So employees speaking within the scope of their employment will not be protected, while a speech given on a matter of public concern by a citizen who just happens to also be a public employee will likely be shielded.  In other words, if a public employee loses his job for arguing about employment matters, the First Amendment will be of no recourse; if fired in retaliation for speaking up on a public matter, the Constitution might ride to the rescue.

Note that I said it might.  It is not automatic.  Even in cases of policy discourses, the government retains some latitude to take action to maintain both discipline and efficiency in providing a public service.

A greater obstacle yet to recovery is a doctrine called “qualified immunity.”  It protects public officials who could reasonably believe what they did was lawful, even if it should later be proven to be unconstitutional.  A good example came from a sordid corruption case in central Alabama.  The plaintiff was fired by the state after testifying truthfully against a corrupt local official.  While corruption is obviously a case of general concern to the citizenry, the courts had yet to say in as many words that public employees testifying truthfully in court were protected under the First Amendment.  Perhaps no-one had had the ‘hutzpah to even question this before.  But that was enough for the Supreme Court to grant qualified immunity to the defendant, on the ground that this constitutional prohibition had not previously been “clearly established” – which is the legal standard.

Such layers of complications are not uncommon.  Whether it is an employer or employee seeking counsel, it is important to find an attorney well versed in the nuances of labor, employment, and constitutional law.

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