The First Amendment and the Government as Employer

I’ll be posting an item shortly on a particular dispute involving the First Amendment and the government as employer, and I thought it would be helpful to articulate the current legal rule on the subject. Here it is, quoted from my First Amendment textbook (and, yes, I know the legal rule is pretty vague):

Rule: The government may not fire an employee based on the employee’s speech if

1. the speech is on a matter of public concern, and

2. the speech is not said by the employee as part of the employee’s job duties, Garcetti v. Ceballos, 547 U.S. 410 (2006), and

3. the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public (the so-called Pickering balance). Connick v. Myers (1983) (p. 567).

• Thus, if the speech is on a matter of private concern, or the speech is said as part of the employee’s duties, the government can do what it pleases.

• Likewise, if the government prevails on the Pickering balance, it can do what it pleases.

Related rule: The government generally may not discriminate based in employment or contracting based on the employee’s membership in an expressive association. Elrod v. Burns, 427 U.S. 347 (1976) (firing); Branti v. Finkel, 445 U.S. 507 (1980) (firing); Rutan v. Republican Party, 497 U.S. 62 (1990) (applying Elrod and Branti to hiring); O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (applying the government employee cases to government contracting decisions).

• But the interest in employees’ political loyalty may justify such discrimination when “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti.

More detail:

1. When is speech treated as being on a matter of public concern?

a. This is supposed to be determined “by the content, form, and context of a given statement.”

b. Even speech that refers to things that might interest the public• for instance, maladministration of a government office• may be found not to be “of public concern.” Connick.

c. Footnote 5 in Connick says that “The question of whether expression is of a kind that is of legitimate concern to the public is also the standard in … a common-law action for invasion of privacy.” See also City of San Diego v. Roe, 543 U.S. 77 (2004) (repeating this analogy). Query, though, whether this is right: If a local newspaper had simply published Myers’ statements about her supervisors (statements that the Court found to be not of public concern), and even if the statements revealed personal facts about the supervisors (in the course of criticizing the supervisors’ trustworthiness), could the newspaper have been held liable for invasion of privacy?

d. Speech that has been held not to be on a matter of public concern:

• Speech aimed at gathering ammunition for controversy with superiors, Connick.

• “Employee grievance[s] concerning internal office policy,” id.

• Pornographic videos sold on the Web by a police officer, at least when the videos and the Web site “[were] linked to [the employee’s] official status as a police officer[] and [were] designed to exploit his employer’s image.” City of San Diego v. Roe. (The videos starred Roe wearing a generic police uniform, the site identified Roe as a police officer, and the site sold the San Diego police department’s official uniforms.)

e. Speech that has been held to be on a matter of public concern:

• Discussing with coworkers unlawful pressure to work in political campaigns, id.

• Complaining to one’s boss about alleged discrimination by the employer, when this is “not tied to a personal employment dispute,” Givhan v. Western Line Consol. School Dist., 439 U.S. 410 (1979).

• Writing a letter to a newspaper about the allocation of government agency funds among various departments, Pickering v. Board of Ed., 391 U.S. 563 (1968).

• Testifying before the legislature about whether a college should be elevated to four-year status, Perry v. Sindermann, 408 U.S. 593 (1972).

• Publicizing a principal’s memorandum about teacher dress and appearance, Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977).

• Saying to a coworker friend that one wishes the President had been assassinated, Rankin v. McPherson (1987) (p. 575).

United States v. National Treasury Employees Union, 513 U.S. 454, 466 (1995), suggests that speech said “to a public audience, … outside the workplace, and involv[ing] content largely unrelated to [the speaker’s] government employment” should generally be treated as being on a matter of public concern.

f. Communication to the public at large is more likely to be seen as speech on matters of public concern than communication to one’s coworkers. However, communication even to one person might be protected if the content is of sufficiently public concern, Givhan.

g. Connick suggested that the speaker’s motive might be central to the public concern inquiry; consider its stress that Myers “did not seek to inform the public,” and that “the focus of Myers’ questions is not to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her superiors.” Some lower courts since Connick have at times focused largely on the speaker’s motive, though others have not.

2. How are courts to do the obviously mushy Pickering balance?.

a. A court may consider the degree to which speech

• interferes with close working relationships (Connick),

• disrupts the office (id.),

• takes up work time (id.),

• threatens employer’s authority (id.),

• or has the potential to do the above (“we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action,” id.),

• or violates an explicit work rule (id. at n.14).

b. The more the speech is on a matter of public concern, the stronger the required showing of interference.

c. “Employee speech which transpires entirely on the employee’s own time, and in non-work areas of the office … might lead to a different conclusion” (id. at n.13).

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