Q: I serve as a director on a public body–a Board of Directors. A majority of that Board recently voted to punish me because I have publicly expressed, as an individual citizen, views contrary to the majority. They said that once the Board has decided something, I should be silent if I disagreed.
Was this unlawful, and do I have any recourse?
A: It is not clear from your inquiry whether you as a Director are a public employee, or an elected official. Nevertheless, we can provide you with some general information as to how the First Amendment may apply in your situation.
Employers, with some exceptions, generally have the ability to limit what their employees can say on behalf of the company or while engaged in work functions. The First Amendment, with some exceptions, generally prevents the government from limiting citizens’ speech. The First Amendment analysis is therefore somewhat complicated when the government is the employer.
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. However, “[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.
Generally speaking, whether a 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 above analysis applies when an adverse action is taken against a speaker’s employment. If you are instead an elected official, the same rubric may not necessarily apply. Case law on this point is comparatively lacking, but as a general matter, we can state that elected officials do not lose their First Amendment rights by virtue of being elected.
In any event, when a government actor takes action against a speaker for engaging in constitutionally protected activity, the speaker may be able to bring a retaliation claim. It is settled law that the First Amendment guards against “[o]fficial reprisal” for exercising one’s constitutional rights because retaliation for exercising one’s right to protected speech “threatens to inhibit [the] exercise of the protected right.” Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012). Federal law allows lawsuits against government actors, state or federal, who attempt to deter the exercise of constitutional rights. In order to show a First Amendment violation under 42 U.S.C. § 1983, a plaintiff must present evidence demonstrating that the defendant, by its actions, “deterred or chilled” the plaintiff’s “political speech and such deterrence was a substantial motivating factor in [the defendant’s] conduct.” Id.
Any question as to whether the Board’s actions against you were constitutionally permissible, and whether you have a viable retaliation claim, will be a highly fact-specific inquiry, which is unfortunately beyond the scope of services we can provide through this hotline.
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.