Joel Dillard & Associates

Unconstitutional rules restricting government employee speech

If you work for the government in Mississippi - whether it is a public school, a jail, a city, or a state agency - the chances are good that your boss has an unconstitutional policy restricting your speech. These policies seem to be rampant in the state.

Teachers, does this sound familiar? Teachers [are] not [to] discuss school matters with anyone - well, that’s an unconstitutional rule. How about this one: do not take any school problems other places, or discuss it with others - yep, unconstitutional.

Cops, recognize this one? Communications must be expressly forwarded for approval to your chain-of-command: completely unconstitutional.

And I’m sure you’ve all heard of this one: No making unfavorable comments on the operations and policies of the Department to the media or on social media: LOL unconstitutional.

These kinds of rules infringing government employee speech are subject toexacting scrutiny under the First Amendment:

A speech-restrictive law with widespread impact . . . gives rise to far more serious concerns than could any single supervisory decision. Therefore, when such a law is at issue, the government must shoulder a correspondingly heavier burden, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights.

For example, in the recent case of Liverman v. City of Petersburg, a police department had a social media policy which forbid the dissemination of any information on social media that would tend to discredit or reflect unfavorably upon the Department, including negative comments on the internal operations of the Bureau or on the specific conduct of supervisors or peers. 844 F. 3d 400, 408 (4th Cir. 2016). The court correctly noted that this was a virtual blanket prohibition on all speech critical of the government employer and noted the astonishing breadth of the social networking policy's language. Id. The policy was clearly unconstitutional.

But even if it isn’t some official policy, even if it is just an email or a spoken comment from a supervisor, it can still be unconstitutional. For example, in Moonin v. Tice, the K9 chief sent an email stating that all communication by line employees with outside persons about the work must be expressly forwarded for approval to your chain-of-command. Communication will be accomplished by the appropriate manager/commander if deemed appropriate. Any violation of this edict will be considered insubordination and will be dealt with appropriately. 868 F. 3d 853, 859 (9th Cir. 2017). The rule was unconstitutional because [t]he troopers' freedom to offer their informed opinions about the direction of the K9 program on their own time, as concerned citizens, is a prerogative that the First Amendment protects but that Tice's edict forbids. Id. at 864.

The bottom line: if you work for the government in Mississippi, the chances are good that they are violating your constitutional free speech rights. Next week we will discuss the most effective ways to address the issue.

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