Retaliation — Public Employees And First Amendment Rights
Many of us know that the First Amendment to the U.S. Constitution protects free speech, but what exactly does that mean for government (public) employees? If you are a state or federal employee, then you are protected from retaliation for exercising free speech by the First Amendment and the Fourteenth Amendment. This means that when you exercise your right to free speech, your government employer cannot retaliate against you with negative employment action. The law regarding free speech can be very complex, however, and not all speech and action is protected. Read below to find out more about what is protected and what limits your employer can legally impose on speech in the workplace.
The First Amendment to the U.S. Constitution says that “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.”
The first thing to know about the First Amendment is that it is a limit only on government. It prohibits the federal government from making laws that infringe on the rights of religion, speech, press, assembly and petition. Through the Fourteenth Amendment, state and local governments are also prohibited from infringing on these rights. Yet, one of the most powerful restraints on individual freedom is the power of employers to discharge workers. If your employer is a private entity, the First Amendment offers you no protection from being fired on account of what you say. (You may still have protection from other sources described below, or in the one state that abolished employment-at-will, Montana).
Public employees, on the other hand, work for the government. So, public employees do have protection from retaliation for exercising certain First Amendment rights. Courts have been cautious in this area, limiting the protection to speech that is on matters of “public concern.” The Supreme Court is not yet ready to say that public employees are protected from retaliation for any First Amendment activity. Thus, while the government could not put someone in jail for complaining about a meager raise, the government might still be able to fire a public employee for this reason, unless the complaint was a matter of “public concern.”
Many, but not all, public employees have other protections. If you belong to a union, you are likely to be protected from any discharge that is without “just cause.” This right is protected by binding arbitration. Similarly, many state and local governments have civil service laws that promise continued employment during good behavior. The civil service laws typically create a government agency to conduct hearings on whether there is sufficient evidence to justify a discharge or long suspension. Public employees with these rights will want to carefully consider whether to pursue these protections with an administrative agency, or alternatively a First Amendment case in court. You (and your attorney) will need to consider the merits of your claims, as well as the reputation of the arbitrators, civil service agency, and the courts in your area. You may also consider pursuing both options, accepting the risk that a decision in one case may possibly control the outcome of the other.
There are also protections for those whistleblowers who report government illegality, waste, and corruption, whose reports are likely to make the perpetrators mad. By protecting the rights of whistleblowers, we can discourage not only the retaliation, but also the corruption itself. See our site’s section on whistleblowing for more information.
The Supreme Court has ruled that public employee speech involving matters of public concern constitutes protected speech under the First Amendment.
The U.S. Supreme Court first recognized that public employees could sue for retaliation in 1968. In the case Pickering v. Board of Education, the Court set out the balancing test that remains controlling law today:
“the interests of the [employee] as a citizen, in commenting on matters of public concern” must be balanced against “the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees.”
In other words, if you bring a claim against your employer under the First Amendment, you must convince the court that your interest in speaking openly on a matter of public concern outweighs the government’s interest in having an efficient workplace.
This is an important right, because, as the Supreme Court has conceded, government employees are often in the best position to learn the deficiencies in the government agencies for which they work. It is important to allow government employees to make these deficiencies open to the community, so the public can debate how to improve them.
To win a retaliation case under the First Amendment, a court must find that:
the plaintiff was engaged in a constitutionally protected activity;the defendant’s adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; andthe adverse action was motivated at least in part as a response to the exercise of the plaintiff’s constitutional rights.
For a public employee claiming retaliation by the employer, the court must also find that:
the employee’s speech was a matter of ‘public concern’; andthe interest of the employee as a citizen, in commenting on matters of public concern, outweighs the employer’s interest in promoting the efficiency of the public services it performs through its employees.
Since the First Amendment is a constitutional principle, the doctrines that interpret it come from a series of court cases, rather than laws that have been passed. The courts add to the list of what subjects are of “public concern” only when a particular case requires them to decide on a new issue. We can look to some of those cases to discern what is, and is not, of “public concern.”
The Supreme Court has found the following speech to be of public concern:
the allocation of school funds, and the administration’s methods of informing, or not informing, the taxpayers of the real reasons why additional tax revenues were being sought for schools,testifying before a state legislature,a memorandum relating to teacher dress and appearance that the school principal had circulated to various teachers at a public school,statements concerning a School District’s allegedly racially discriminatory policies,where speech criticizes government inefficiency and waste, not as an aggrieved employee, but as a concerned citizen,staff psychologist criticizing a hospital for unnecessary psychotropic drugs, failing to provide safe working conditions, and inadequately supervising a penal code patient,the manner in which police and fire fighters performed upon a particular occasion,adequacy of funding for emergency services, environmental violations at wastewater treatment plant,an elementary school teacher who claimed she was fired for inviting actor Woody Harrelson to come speak to her class about the environmental benefits of hemp.
The Supreme Court has ruled that when employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should not have to suffer too much interference with managing their offices.
Your employer may dismiss you for speech that is not considered of public concern, such as employee grievances concerning internal office policy, such as a petition circulated by an Assistant District Attorney to other Assistant District Attorneys about the office’s transfer policy, office morale, and whether a grievance committee was needed. However, a person dismissed for such activity would have the same First Amendment protections a non-employee would have in a libel or other case.
The result of various Supreme Court cases is that some speech is more clearly of “public concern” than others. Matters of elections, pending legislation, corruption, race discrimination, public health and safety are in the zone of public concern. Matters of internal employment policy that do not touch on these public concerns are normally unprotected.
Other matters may or may not be of “public concern,” depending on the scope of media attention, controversy, or, on the other hand, how deeply they disrupt the function of the public office. Sometimes we just cannot tell what a court will do with a case raising a new area or an issue that raises strong concerns about both public policy and internal disruption. As the Supreme Court stated in Connick v. Myers:
“Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.”
Once a plaintiff states a claim for unlawful retaliation, a court must decide if
“the interest of the employee as a citizen, in commenting on matters of public concern, outweighs the employer’s interest in promoting the efficiency of the public services it performs through its employees.”
Courts have to make this decision after weighing the facts of each particular case. Some balancing factors for a court to consider include whether:
the statement impairs discipline by superiors or harmony among coworkers,the statement has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, andwhether the speech in question interferes with the normal operation of the employer’s business.
The extent of the government’s burden to show disruption depends on the nature of the employee’s expression. The more important the First Amendment interest, the more disruption the government has to show. A speaker’s “personal stake” in a controversy does not prevent speech on the issue from involving a matter of public concern.
Yes, these factors may seem vague or subjective. For example, even though the education of special needs students is clearly a matter of public concern, a principal may lawfully discharge teachers for disobeying an order to quit talking about this subject. The 8th Circuit Court of Appeals held that the speech “resulted in school factions and disharmony among their co-workers and negatively impacted [the principal’s] interest in efficiently administering the middle school.” Fales v. Garst.
Compare this result to Belyeu v. Coosa County Bd. of Education, where the Court of Appeals in Atlanta upheld the rights of a teacher’s aide who called for a commemoration of Black History Month in a speech to a PTA meeting. Immediately after the meeting, the principal told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system’s interest in avoiding racial tensions outweighed the aide’s right to free speech. On appeal, however, the Court reversed, writing that the aide’s “remarks did not disrupt the School System’s function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so.”
This question was recently answered by the U.S. Supreme Court in a 5-4 decision. In the case of Garcetti v. Ceballos, the Court decided that employees must be acting as private citizens to receive First Amendment protection. That is, they are not acting as private citizens while performing their job duties. In essence, the boss can control what is said on the job, but not what the employee says on matters of public concern as a private citizen.
The Court stated, “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
So, to receive First Amendment protection, the employee must apparently be on his or her own time (clocked-out), and speaking in a forum for citizen expression on matters of public concern. Those employees who claim that they were just “doing their jobs too well” will find that they no longer have First Amendment protection. (They may still have protection under specific laws; for example, if they report environmental violations as required by federal law, then the environmental laws will still provide protection against adverse employment actions.)
The Garcetti decision is a setback for public employees, and we can look forward to further developments in the law as legislators consider the need for new laws, and courts issue further decisions in this area.
The speech of teachers in the classroom represents the school’s educational product. Most courts apply to teachers’ speech the more deferential standard that asks whether there is a legitimate educational reason for the school board’s policy.
One federal appeals court determined that any form of censorship must be reasonably related to a legitimate educational reason. However, many courts are highly deferential to employer interests, especially public school officials. For example, in Fowler v. Bd. of Education of Lincoln County, Ky., a teacher found no protection from the Cincinnati appeals court after she showed an R-rated movie (Pink Floyd — The Wall) to her class.
As a result, teachers should understand that the traditional First Amendment rights of academic freedom generally accorded to university professors are much more limited in public primary and secondary schools.
Yes, and perhaps even more so. Through the “petition clause” of the First Amendment, the Constitution’s Framers recognized that those who ask government to address unfairness face an extra risk of retaliation. Through the “petition clause,” they flatly prohibited any restraint on petitioning government for redress of grievances. At worst, courts will treat a petition as “speech” and require that it pass both the “public concern” and balancing tests before protecting public employees who present grievances.
However, different courts have different views on whether the “public concern” standard should apply to retaliatory dismissal of a public employee who files a “petition.”
With a labor grievance, the government can hardly claim that the employee was being disruptive, since the employee is following the government’s own policy on how to file the grievance. Hopefully other courts will see the light that the right to petition is not limited to matters of public concern. Until then, many labor activists will suffer retaliation without a remedy.
The time limit for federal employee claims of retaliation in violation of the First Amendment will depend on the administrative remedies available. If you have a right to appeal an adverse employment action, for example to the Merit System Protection Board (MSPB), then you do not have a right to sue in court. The time limit for MSPB appeals is typically thirty (30) days. See the MSPB’s Appeal Process for more information.
A federal whistleblower who filed a complaint with the Office of Special Counsel (OSC) will have sixty-five (65) days after OSC issues a notice of termination of its investigation. If OSC takes longer than 120 days, then an appeal can be filed anytime thereafter (up until 60 days after receipt of notice from OSC).
The time limit for state and local employees to file a lawsuit for violating the First Amendment varies from state to state. This is because Congress did not establish a time limit for claims under the federal law that allows people to sue when someone acting “under color of state law” violates rights guaranteed by federal law. So, the Supreme Court has said that federal courts should use the time limit for personal injury claims in the state where the court is located. This is the same time limit set by each state for automobile accident claims. Depending on the state, the time limits run from one year (Kentucky, Louisiana and Tennessee) to six years (Maine and North Dakota). You can find the time limit in your state from web pages like:
Some states may recognize that a discharge in violation of the First Amendment is a wrongful discharge and allow you to sue for damages in state court. See, for example, the New Jersey Conscientious Employee Protection Act.
We can also ask our state legislators to adopt the Montana law that abolished employment-at-will. In Montana, no employee who has successfully completed the probationary period can be fired without cause. Montana adopted the statute in the 90’s and its economy did not stop. Still, no other state government has adopted a similar law. If you are unlawfully fired, you can also apply for unemployment compensation benefits. See our site’s termination section for more information.
Whenever anyone has a legal claim against another, they have a duty to mitigate damages. That means you have to do what you can to minimize the damages. In retaliation and discrimination cases, a discharged worker has a duty to look for new employment. If the other side can convince the judge or jury that you did not do what was reasonable, you could win your case and be awarded one dollar (nominal damages). In employment cases, you must make a good faith effort to reduce the money that you have lost because your former employer caused you to lose your job. This means that you need to actively look for another job. For more information, please see our site’s mitigation page.
It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a retaliation case. Some lawyers with experience will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will trust the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer’s first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement of the complaint. When you shop around for an attorney, look for attorneys who have experience in employment matters. For more information, see our site’s attorney resources page.
Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.
The content on this page was provided by Richard Renner.
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