First Amendment

First Amendment Rights in Employment

The Law Offices of Kevin J. Dolley has handled a variety of matters involving legal claims and questions under the First Amendment of the United States Constitution. We have represented public employees, such as police officers and government officials, in connection with complaints and concerns about violation(s) of their First Amendment rights. Our attorneys know the complex legal principles and analysis called for by First Amendment jurisprudence and can help you understand your rights and obligations under the law.

Rights in Public Employment

The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It reflects several fundamental rights, including the right to free speech. However, the free speech protections of the First Amendment only apply to public employment—not private employment—because it only applies to government actions. Nonetheless, millions of Americans work for some form of government in the United States, so questions regarding the nature and scope of First Amendment speech protections in the public employment context are significant to many people throughout the country.

In 1968, the United States Supreme Court recognized a public employee’s right to free speech in a case in which the employee had publicly criticized his employer. See Pickering v. Board of Ed. of Township High Sch. Dist., 391 U.S. 563 (1968). The employee—a teacher—wrote a letter to a newspaper in which he criticized the school board’s handling of bond and tax issues related to the construction of new school buildings. The employee signed the letter “as a citizen, taxpayer and voter, not as a teacher.” The school terminated him, finding his letter “detrimental to the efficient operation and administration of the schools of the district.” The Supreme Court concluded, “absent proof of false statements knowingly or recklessly made by [the teacher], a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”

Pickering was a landmark free speech decision that set the stage for how First Amendment claims would be analyzed in the context of public employment. The Supreme Court acknowledged the difficulty of striking “a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public of the public services it performs through its employees.”

To balance these interests, the Court provided guidance on what has come to be known as the Pickering test. This analysis first asks whether the public employee spoke on a matter of public concern (i.e., a matter of larger societal significance or importance). If the employee did not, he or she does not have protection under the First Amendment. If, however, the employee did speak on a matter of public concern, the court must analyze the balance of the above-stated interests of the employee and employer.

Following Pickering, the Supreme Court elaborated on the nature and scope of First Amendment protections in the public employment context through a series of decisions over several decades. See, e.g.,Connick v. Myers, 461 U.S. 138 (1983); Rankin v. McPherson, 483 U.S. 378 (1987); Waters v. Churchill, 511 U.S. 661 (1994); Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Supreme Court introduced a new threshold inquiry in the First Amendment analysis when it held that public employees who make statements pursuant to their official job duties have no First Amendment protection. This is because such employees are not speaking “as citizens” and restricting such speech “does not infringe any liberties the employee might have enjoyed as a private citizen.”

Many issues and questions thus arise under First Amendment claims. In what capacity was the employee speaking? What was the employee’s job duties? Did the employee speech touch upon a “matter of public concern”? Did the employee’s speech interfere with or disrupt operations or the workplace? With substantial knowledge of these and other First Amendment cases, the attorneys with our Firm have litigated these issues at length on behalf of our clients. What is clear from these cases, like many other employment cases, is that the details of the work performed and the workplace matter. Retaining an attorney who can develop, analyze, and articulate those details within the relevant legal framework is critical.

Contact Us

If you are facing a question or claim regarding First Amendment rights in the workplace, contact our Firm by phone at (314) 645-4100 or by e-mail at kevin@dolleylaw.com.

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