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Government Employee Free Speech

Public employees don’t give up all their First Amendment rights when they work for a government employer. If you are a government employee and have been fired or retaliated against for exercising your right to free speech, you should talk to an Ohio First Amendment lawyer.

Ohio free speech lawyers

Cleveland free speech lawyers

“The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). This principle applies to public employees. As a general matter, government employers violate the First Amendment when they fire or retaliate against an employee for protected speech. Determining whether speech is protected, however, can be tricky.

Protected speech might take the form of whistleblowing. After all, it is often government employees who are in the best position to uncover public corruption, abuse of public trust, misuse of public money, or other illegal conduct in public workplaces. For the employees who speak out and report these issues, the First Amendment is a critical protection.

But in this age of social media, the First Amendment might also protect government employees for their own personal speech, made on their own personal time. In many cases, the First Amendment might protect public employees who speak out on social media about issues of public concern or who publicly express their political views.

The First Amendment does not protect all speech by public employees under all circumstances. Whether you have a claim for First Amendment retaliation depends on a variety of legal and factual questions. To find out if you have a claim, you should consult with an experienced free speech lawyer.

When does the First Amendment protect public employee speech?

Courts have developed a three-part test to determine when the First Amendment protects a government employee’s speech.

First, public employee speech is protected only if it is on a matter of public concernThat means the speech at issue must relate to “any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011). For instance, speech exposing public corruption, discrimination, government abuse of power, or misuse of public funds are all matters of public concern. Political speech is as well. On the other hand, workplace grievances or generalized complaints about poor employee performance are typically not matters of public concern.

Second, employees are protected only when speaking as private citizens rather than as part of their job duties. Under a 2006 Supreme Court case called Garcetti v. Ceballos, the First Amendment protection for public employees does not extend to speech made as part of a public employee’s job duties. If employees speak as part of their job duties, the First Amendment offers no protection from discipline—even if they are speaking on an important matter of public concern.

If the employee passes the first two hurdles, courts then balance whether the employee’s right to free speech outweighs the government’s rights as an employer. Using what is known as the Pickering-Connick balancing test, courts weigh several factors to decide whether the employee has a protected free speech right. For instance, courts look to the nature of the speech at issue and its potential impact on an efficient working environment, among other things. Courts then weigh those factors against the employee’s right to speak out.

Protections for employees fired for their political beliefs

Setting aside public criticism of elected officials, most public employees also have a First Amendment right not to be fired for their personal political beliefs or party affiliation. In many cases, it is illegal to fire a government employee for supporting, or refusing to support, a particular candidate, political issue, or political party. When employees are fired under these circumstances, it is called a “patronage” dismissal. Not every employee is protected from patronage dismissals, however, so figuring out whether you have a claim requires speaking with a First Amendment attorney.

At Bolek Besser Glesius, our Cleveland free speech lawyers are experienced in helping government employees fight back when they expose corruption or otherwise exercise their right to free speech and face First Amendment retaliation as a result.

If you are a government employee and believe your First Amendment rights have been violated, contact us today.