A&A: I Believe My University Has Infringed on My Right to Free Speech. How Can I Fight Back?

Q: I am a Ph.D. student at a state university. For the past several months I have been a part of a political movement demanding a cost of living adjustment for graduate students. As part of this student action, there have been pickets often consisting of several hundred people daily. I have been fired as a result of my participation in this strike. I am requesting assistance regarding a recent development that may infringe on my right to free speech.

Yesterday I received a summons from the university notifying me of an interim suspension which will result in my arrest if I return to campus to perform my duties or need to access materials for my dissertation, attend lectures, etc. It may also result in the garnishment of my wages.

The primary reason for this temporary suspension and summons was that I wrote an email I wrote that was sent to a public email list (a thousand or so people associated with the campaign). The intention of this email was for those in the student campaign to upcoming regents’ meetings and speak out against the use of police violence against protesting students, low wages, and mass firings. The use of a public forum to critique university policy is well within my rights as a student, and certainly, nothing in the email implied any threat of violence or damage to property. This suspension represents, as far as I understand the constitution as a layperson, a violation of my first amendment right to free speech.

I believe that I am being targeted due to my outspoken support for the movement. I am not requesting assistance for anything other than this suspension, which I believe will continue to be an intimidation tactic used against those who exercise their free speech by criticizing the university.

A: While we cannot provide you with specific legal advice or representation through this hotline, we can provide you with a brief overview of the constitutional protections for engaging in protected First Amendment activities. If the University is in fact retaliating against you for engaging in protected speech, you may have a viable lawsuit against them.

The First Amendment generally 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. To succeed in a retaliation action under 42 U.S.C. § 1983, a plaintiff must show “that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). Therefore, if a government employee, such as a university official, acted in their official capacity to retaliate against an exercise of your free speech rights, you might have a viable retaliation claim against that person.

A further complication arises in your case because you are a government employee. 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.

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.

This is only an overview of the legal doctrines that may come into play under the facts you have described. For a more thorough analysis of your specific situation, we encourage to you speak to a local lawyer, who can provide you with more specific legal advice and individual representation.

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.