Do Public Employees Have Free Speech Rights?

Public employees are generally protected from retaliation by their employer for the exercise of their First Amendment right to freedom of speech. However, that protection that not absolute. Generally, public employees have the right to speak publicly regarding matters of public concern during their off-duty time and cannot be disciplined for doing so provided their exercise of that right does not interfere with the employer’s interest in maintaining the efficiency of its operations.

In determining whether the speech of a public employee is constitutionally protected, courts utilize a balancing test first established by the United States Supreme Court in Pickering v. Board of Education, 391 US 563 (1968). Through a series of subsequent decisions, the U.S. Court of Appeals for the Sixth Circuit has developed a three-part test for evaluating claims by public employees in Michigan that their employer has violated their First Amendment right to freedom of speech. Specifically, to prevail in a claim of retaliation for protected speech, a public employee must establish:

1. The speech touches on a matter of public concern; Connick v. Myers, 461 US 138, 140, 145-46 (1983)
   AND
   Their interest in the speech outweighs the government’s countervailing interest in promoting efficency of the public service it provides as an employer; Pickering, 391 US at 574
2. The employer’s adverse action would chill an ordinary person in the exercise of their First Amendment rights; Cockrel v. Shelby County School District, 270 F.3d. 1036, 1048 (6th Cir. 2010)
3. There exists sufficient evidence to create a genuine issue as to whether the speech was a substantial or motivating factor in the employer’s decision to discipline. Mt. Healthy City School District Board of Education v. Doyle, 429 US 274, 287 (1977)

“A public employee has a constitutional right to comment on matters of PUBLIC CONCERN without fear of reprisal from the government as employer.” Connick v Myers, 461 US 138, 140, 145-46 (1983)

What Are Matters of Public Concern?

In assessing whether speech by a public employee is a matter of public concern, the first thing members should understand is that to be protected their speech MUST be made as a private citizen.

There is no protection from retaliation in an employment setting where speech implicates matters of public concern (even if not disruptive to the efficient operations of the employer) if the speech is made pursuant to or as part of the employee’s official job duties. Garcetti v. Ceballos, 547 U.S. 410 (2006).

Courts use a fact-specific analysis to determine whether an employee is speaking as a private citizen. In that analysis, courts look at the “content, form, and context of a given statement as revealed by the whole record.” Mosholder v. Barnhardt, 679 F.3d 443, 449-50 (6th Cir. 2012). In Anderson et al v City of Jellico, for example, the Sixth Circuit held that two police officers in Tennessee who attended a city council meeting in uniform, spoke during the portion of the meeting reserved for official city business, and addressed their employer about plans by the mayor to overhaul the police department were speaking as public employees, not private citizens.

Next, even when acting as a private citizen, members must consider whether their speech is of public concern. Ordinarily, matters of public concern are “any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 147-148. Courts have historically looked to whether the general public would or should have an interest in the matter being discussed or shared by the employee. In a 2015 case, a federal court upheld the termination of a sergeant despite determining that she was speaking as a private citizen. The court held her Facebook post criticizing her department’s chief for refusing to pay costs associated with officers’ attendance at the funeral of an officer from a neighboring jurisdiction was not a matter of public concern; rather, it was “akin to an internal grievance.” Graziosi v. City of Greenville, 775 F.3rd 731 (5th Cir. 2015).

Balancing Employee and Government Interests

If a public employee satisfies the requirement that their speech is a matter of public concern, the employer must then show that its interests in maintaining the efficiency of the service it provides the public outweighs the employee’s First Amendment rights. When balancing the employee’s interest in speech against a public employer’s interest in its operations, courts regularly consider, among other factors: whether the speech impairs supervisory ability to discipline, whether the speech impairs harmony among coworkers or has a detrimental impact on close working relationships, whether the speech interferes with the performance of employees’ duties, whether the speech undermines the mission of the employer, and whether the employee serves in a confidential, policy making, or public-facing role. Rankin v. McPherson, 438 US 378 (1987).

Members should be aware that courts have routinely held that police departments in particular have heightened interest in “discouraging public dissension within its … force” (see Brown v. City of Trenton, 867 F.2d 318 (6th Cir. 1989)) and disciplining employees to prevent such (see also Breuer v. Hart, 909 F.2d 1035 (7th Cir. 1990)). In 2002, in upholding the termination of a police officer who anonymously distributed racially insensitive material, the court wrote: “the effectiveness of a city’s police department depends importantly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even-handedly, and without bias…” Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002). More recently, a court presided over a dispute regarding the discipline of a Las Vegas Metropolitan Police Department SWAT officer after the officer said, “It’s a shame he [the suspect] didn’t have a few holes in him[.]” in response to a friend’s Facebook post following the shooting of another officer. Though the case was remanded on a technicality, the court did not conclude the officer’s interest in the speech outweighed the department’s interest in the efficiency of its operation. Moser v. Las Vegas, 984 F.3d 906 (9th Cir. 2021).

Conclusion and Tip for Members on Public Speech

Members should exercise caution and thoughtful discretion when speaking on matters in any way related to their employment. While it is worth noting there may be other statutory protections for speech (e.g., the Public Employment Relations Act or the Whistleblowers’ Protection Act), members are strongly encouraged to contact their union rep or the union office before speaking publicly in any way about their employment.

Members should be mindful of the words of the United States Court of Appeals for the Eleventh Circuit in 2019 in King et al v. Board of Commissioners, Polk as a reminder of their employer’s ability to restrict their speech:

“If speech owes its existence to a public employee’s professional responsibilities, that indicates the speech is not protected by the First Amendment.”