Employees in the public sector do have a protected right to free speech; however, this right is limited. The First Amendment only protects government employees when they are speaking as a private citizen. If the government employee’s speech is part of their official job duties, they can be disciplined or fired for what they say.
Just as citizens have an important interest in speaking freely, the government has a strong interest in fulfilling its duties to the public in the most effective and efficient manner possible.
Since workplace disciplinary action by an employer may be justified when effectiveness and efficiency are seriously threatened, the government may be justified in bringing a disciplinary action against an employee whose exercise of their free speech right severely impacts the government's ability to effectively and efficiently fulfill its duties.
In What Way is My Speech Limited as a Government Employee?
If a government employee was speaking as a private citizen, then it must be determined whether their speech was a matter of public concern. If they weren’t speaking on a matter of public concern, the First Amendment will not protect their speech. If they were speaking on a matter of public concern, the First Amendment might protect their speech.
What is a Matter of Public Concern?
As always, judicial jurisdictions vary on what is deemed a matter of public concern. Generally speaking, the speech must be of great political or social relevance to the community. Jurisdictions tend to agree that the following should be protected whenever possible:
- Debate on public issues, regardless of its inappropriate or controversial nature;
- Unpopular or offensive ideological views expressed in the context of political demonstrations;
- Numerous forms of artistic expression, even on matters otherwise considered to be insignificant or profane; and
- The proper allocation of governmental resources.
Is All Speech on Matters of Public Concern Protected?
Unfortunately, it is not. Courts will always look at the context of your speech, taken as a whole. So your speech is unlikely to be protected if:
- The purpose of your speech was for personal satisfaction or to redress a personal grievance, or
- If the burden the speech places on the government in fulfilling its responsibilities to the public greatly outweighs the benefit the speech was intended to provide.
What Factors do the Courts Consider?
The government employer has an interest in professionally delivering public services and maintaining good professional relationships within an office and as their duty as a government employee. Courts evaluate the government employer’s interest by considering some important factors:
- Whether the speech would interfere with the employee’s work duties;
- The nature of the working relationship between the employee and the person directed to;
- Whether the relationship between the employee and person speech was directed to was sufficiently close that the speech would create conflicting relationships in the workplace; and/or
- Whether the speech would damage the loyalty and confidence required of close working government employees.
Do I Need a Lawyer?
If you work in the public sector and feel you were unjustly disciplined by your employer or wrongfully terminated after exercising your right to the freedom of speech, it is in your best interest to contact an employment lawyer as soon as possible.