Joel Dillard

Representing Mississippi Workers

The First Amendment Free Speech Rights of Government Employees

It is illegal for a government employer to retaliate against a government employee for engaging in constitutionally protected free speech, like running for office or speaking out on public issues to the newspaper. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968). But not all speech is protected. The only speech which is protected is when the government employee spoke as a citizen on a matter of public concern. Anderson v. Valdez, 845 F. 3d 580, 590 (5th Cir. 2016).

So first, speech as a citizen means that the employee is not speaking in his role as a government employee. If it is in his job description or duties - like a cop's speech while walking his beat, or a teacher's classroom instruction - then it is not really the individual's own speech, it is the government's speech and the government can regulate and control it, including by firing the employee because they disagree with the employee's speech. When the employee is speaking for the government - that is, when the speech is part of the employee's job - then it is not protected by the constitution.

Second, gripes about internal workplace issues - coworker rudeness, disagreement about work rules, etc - is usually not protected either, because the speech must be of public concern. Speech involves matters of public concern when it can be fairly considered as relating 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. The inquiry turns on the content, form, and context of the speech. Lane v. Franks, 134 S. Ct. 2369, 2380 (2014).

So speech about a public issue (like an election) in a public forum (like a newspaper) in an article trying to achieve a public objective (like the victory of a particular candidate) is likely to be protected.

But there is one additional hurdle: what the courts call Pickering balancing. The court weighs the public value of the speech against the disruption it causes, and decides whether to protect the speech or not. So even the public speech of private citizens will not always be protected.


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