I Can't Believe You Said That!
Employee First Amendment Rights

The First Amendment prohibits retaliation by a public employer against an employee who voices a matter of public concern. Courts have broadly defined retaliation not only as actions such as termination, but as any act reasonably likely to deter employees from voicing matters of public concern. So, can a public employer ever deter an employee who speaks out on a matter that the employee believes concerns the public? Yes, but only after an evaluation of the importance of the employee's speech and any disruption it may cause in the workplace.

What is Protected Speech?

First, only statements that the federal courts determine are matters of public concern are entitled to First Amendment protection. Until recently, courts included in this definition employee speech unless it involved individual matters, disputes or grievances that would have no relevance to the public's evaluation of a government agency. The Supreme Court, however, recently narrowed the definition to "a subject of legitimate news interest…a subject of general interest and of value and concern to the public" or "matters concerning government policies that are of interest to the public at large." So, if an employee files a claim for unlawful retaliation in violation of the First Amendment, a court will first examine the content, form and context of the employee's speech to determine if the speech is socially valuable. This revised standard may limit First Amendment protections that were previously granted to public employees and place most speech in the unprotected category.

But even if a public employee's speech addresses a matter of public concern, a court will balance the employee's free speech interests against the employer's interests in the effective and efficient operation of its public responsibilities. Generally, a public employer may impose discipline or engage in acts likely to deter an employee's participation in protected speech if it impedes the employee's ability to perform his or her responsibilities, undermines office relationships, or disrupts office operations or efficiencies.

Not surprisingly, under the revised standard, the Supreme Court held that a police officer's participation in a video in which he stripped off his uniform and performed a sexual act did not rise to the level of protected speech. But, what other statements or actions have courts determined deserve protection as matters of public concern? Here are a few:

• A faculty member complained that a school district did not appropriately accommodate disabled students. A few months later the district terminated her and she filed a retaliation claim. The court held that her statements addressed matters of public concern and affirmed a million-dollar verdict against the district.
  
  
• A tenured college faculty member produced an underground campus newspaper called "The Dissent" that portrayed the trustees, campus administration and the new president in a negative light. The paper included comments about a two-ton slab of granite that the faculty member hoped to drop on the president's head, a fantasy description of a funeral of a district trustee at which the other trustees were asphyxiated and an academic integrity matrix given the acronym of MAIM. District administrators viewed these statements as threats and ordered the faculty member to cease verbal threats, avoid discrimination or harassment and to seek counseling. The faculty member sued to obtain an order allowing him to continue publishing the paper and awarding him damages. The court ruled that the hyperbolic statements in the paper addressed matters of public concern, were not true threats and concluded that his free speech rights outweighed the district's interests.
  
  
• Three employees silently read their Bibles during a mandatory seventy-five minute training program entitled "Gays and Lesbians in the Workplace." They received reprimands that rendered them ineligible for promotions. When they filed retaliation claims, the court held that by making the training mandatory, the public employer created a context in which the employees' actions represented speaking out on a social issue and thus addressed a matter of public concern. The court reversed an order dismissing their lawsuit.

Because the definition of protected speech is evolving, and the determination of what speech falls under First Amendment protections is fact-intensive and often difficult, it's best to consult Employee Relations or the Office of General Counsel when considering actions that might deter an employee's speech. Although courts have narrowed the definition of protected speech, many statements remain protected and, as illustrated by the above cases, a wrong decision can result in prolonged litigation and substantial cost.

Published in the Winter 2005 Edition of In Brief