Broad Speech Protections for New Hampshire Government Employees

The government as employer may often fire, demote, or suspend employees based on their speech, even when the speech would be protected against criminal punishment or civil liability. If the speech is seen as sufficiently disruptive, or on a matter of purely private concern, or part of the speaker’s job, the speech is generally unprotected by the First Amendment against the government employer (see this post for details).

But I recently came across an odd fact — New Hampshire statutes seem to provide far broader protection to government employees:

98-E:1 Freedom of Expression. Notwithstanding any other rule or order to the contrary, a person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies. It is the intention of this chapter to balance the rights of expression of the employee with the need of the employer to protect legitimate confidential records, communications, and proceedings.

98-E:1-a Definition. In this chapter, “public employee” includes any person employed by the state or any subdivision thereof, including, but not limited to counties, cities, towns, precincts, water districts, school districts, and school administrative units.

98-E:2 Interference Prohibited. No person shall interfere in any way with the right of freedom of speech, full criticism, or disclosure by any public employee.

98-E:3 Confidential Records. Nothing in this chapter shall suspend or affect any law relating to confidential and privileged records or communications. For the purposes of this chapter, confidential records and communications shall include communication or records relating to investigations for law enforcement purposes and collective bargaining proceedings.

98-E:4 Employees’ Remedies. I. A public employee may seek injunctive relief or maintain a civil action, or both, to recover damages for violation of this chapter in any court of competent jurisdiction by bench or jury trial.

II. If the public employee prevails, in addition to damages the court may allow the costs of the action and such attorney’s fees as it finds to be reasonable to be paid by the defendant employer.

III. This chapter shall not alter or impair the rights of any person under a collective bargaining agreement or affect any other right or remedy provided in law.

The exact scope of the statute is not entirely clear, since § 98-E:1 speaks of “all matters concerning any government entity and its policies,” but § 98-E:2 speaks more generally of “freedom of speech,” which would encompass speech about any subjects. Still, I would suspect that § 98-E:2 would indeed be read broadly, and not seen as limited by § 98-E:1. Appeal of Booker (N.H. 1995), the only New Hampshire appellate case I could find interpreting §§ 98-E:1 and 98-E:2, says (emphases added):

RSA chapter 98-E provides that each State employee has “a full right to publicly discuss and give opinions as an individual on all matters concerning the state and its policies.” The chapter further prohibits any person from interfering “in any way with the right of freedom of speech, full criticism or disclosure by any state employee.” The only limitation on a State employee’s exercise of free speech under the statute is that one may not disclose confidential or privileged records or communications.

If taken seriously, this would protect from retaliation even insults (short of criminally punishable “fighting words”) of coworkers or customers, though I know of no cases on the subject. There’s only one other decision I could find discussing §§ 98-E:1 and 98-E:2, Jordan v. State (N.H. Super. Ct. Apr. 11, 2012), but that also involved speech about government policies.

In any event, this strikes me as an interesting statute — I’d love to hear what New Hampshire lawyers or government employees have to say about how it affects things in New Hampshire in practice. (For statutes in many states protecting both private and public employees from employer retaliation based on their speech and political activity, see here, but those statutes tend to be rather narrower than this one.)