In March 2011, the United States Supreme Court issued a controversial decision in Snyder v. Phelps, which upheld the First Amendment right of the Westboro Baptist Church congregation to picket military funerals to communicate their belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military.
The analysis used in Snyder also applies to determine whether speech of public employees is protected by the First Amendment. A government employer’s ability to regulate the speech of its employees is affected by constitutional free speech considerations. The extent of a public employer’s right to restrict or discipline an employee for speech depends primarily on whether the speech in question addresses a matter of public concern and, secondarily, whether the speech is made pursuant to an employee’s official job duties.
In Connick v. Meyers, the U.S. Supreme Court stated that government officials have “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment” where the employee speech “cannot be fairly considered as relating to any matter of political, social, or other concern to the community.” Whether an employee’s speech is a matter of public concern in turn depends upon “the content, form, and context of a given statement.” A public employee’s speech is usually considered a public concern if it helps citizens to make informed decisions about the operation of their government.
If the speech does address a matter of public concern, a court must next determine whether the public employee’s statement was made pursuant to his or her official duties. If it does, the employee does not speaking as a citizen for First Amendment purposes, and the Constitution does not insulate the communication. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe upon any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.
If the employee is speaking as a private citizen on a matter of public concern, the court must conduct a balancing test. This balancing test requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public, which includes the government’s legitimate purpose in restricting the employee’s speech to “promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service.” A court would thus balance the employee’s speech against any disruption that speech actually causes to the employer. Such disruption might include interfering with the ability of supervisors to discipline or control subordinate employees, disrupting co-worker relations, eroding close working relationships premised on personal loyalty and confidentiality, interfering with the employee’s performance of his/her duties, engaging in speech with reckless disregard for the truth, and engaging in speech that violates employer rules.
The free speech rights of public employees are unique. A controversial case like Snyder demonstrates that speech that is not popular may still be afforded protection. Given the strong protection rights afforded to speech, it is critical that legal counsel be sought prior to disciplining employees for statements made, or placing restrictions on certain speech, to be sure that the employment decision does not run afoul of the First Amendment and expose your agency to liability.