A&A: What are the free speech rights of public employees?

Q: I am a member of the governing board of the Unified School District.  An employee just told me that the superintendent told her that if she speaks to any board member she would be “dealt with.”

The conundrum is this: Employees share their concerns with us but ask that their identities be kept confidential. The superintendent has said that unless the person is willing to put the concern in an email which a board member can then forward, he will not respond to the concern, verify or deny the claim, or give the board information on the subject.

This employee has been willing to put her name on complaints and concerns and she has been harassed and retaliated for doing so. What can I do to help her and help the district get back on track?

A: It sounds like this employee is in a tough situation, given her desire to speak out about issues of public concern while protecting her employment at the school.  While we cannot provide specific advice through this service, I can give you an overview of the First Amendment and its application to government employees.

As a threshold matter, it is important to note that “public employees do not surrender all their First Amendment rights by reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).  “It is well settled that ‘a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’” Id. at 413 (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)).  However, as noted, “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti, 547 U.S. at 418 (citing Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign.”).

Generally speaking whether government employee’s speech receives First Amendment protection depends on three factors:

• (1) Whether the speech is a matter of “public concern”;
• (2) whether the employee spoke as a private citizen and not a public employee (i.e., speech is not pursuant to “official duties”); and
• (3) whether the employee’s speech interest outweighs the agency’s interest in efficiency and effectiveness.  Garcetti v. Ceballos, 547 U.S. 410 (2006).  The last factor involves a balancing test derived from the Supreme Court’s decision in. Pickering v. Board of Education, 391 U.S. 563 (1968).

In Pickering, the Court held that while teachers as public employees do not enjoy the complete protection of the First Amendment because of the government’s “interests as an employer in regulating the speech of its employees,” a balance must be struck between “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568.

However, the Court made clear in Pickering that the negative impact of the teacher’s expression must be substantial and material. If the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally,” then “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public,” and the teacher’s speech enjoys First Amendment protection.
Id. at 568, 573.

Each situation is necessarily fact-specific, so it is difficult to say in the abstract what type and modes of speech would be protected underPickering, and which might not be protected.  At a minimum, it would seem that a teacher expressing her views on important issues related to the school would constitute speech on a matter of public concern.  However, depending on the circumstances, a
court might conclude that the other two factors weigh on the side of finding the employee’s speech is not protected under the test described above.

As a school board member, you could seek to have this issue added to the agenda of an upcoming meeting so the board can discuss potential ways in which district employees canbring their concerns to the attention of board members without fear of retaliation by their superiors.  The teacher here might also want to meet with her union representatives on this matter, as they may have some guidance on these issues.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.  No attorney-client relationship has been formed by way of this response.