First Amendment Rights of Public Employees
Public sector employees enjoy Constitutional protections in the workplace that in many cases their private sector counterparts do not. Until the middle of the last century, it was well established that public employees enjoyed free speech rights under the First Amendment, but that public employers were privileged to substantially restrict the exercise of those rights as a condition of public employment,( Adler v Board of Education, 342 U.S. 485 (1952). Over subsequent years, First Amendment protections of public employees were greatly expanded as the Supreme Court clearly established that public employers could not, as a condition of employment, require public employees to relinquish substantial rights to associate freely with others or to refrain from compelled speech (in the form of loyalty oaths, etc.). (Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967).
But firstly what do we understand by First Amendment?
The First Amendment to the United States Constitution prohibits the making of any law respecting an establishment of religion, ensuring that there is no prohibition on the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances. (“U.S. Const. Amend. I”)
So in laymen’s language this means, an American retains the right to practice a religion of his or her choice, to say just about anything (other than some narrow categories of speech such as obscenity and defamation), the right of a free press, and freedom to assemble peacefully anywhere. In this article I will be focusing more on one pillar of the First Amendment which is freedom of speech.
The questions we will examine here is how far does the First Amendment go to protect the speech of government employees?
Does it allow the government to use a public employee’s speech as the ground for discharge or denying a promotion?
Ironically the answer to the last question according to the Supreme Court at one time was a simple ‘Yes’.
By 1967 the Court took the position that public employment cannot be conditioned on a surrender of constitutional rights. The problem for the Court then became how to balance the government’s interest in maintaining an efficient public workplace against the individual employee’s interest in free expression. (Kevishian.)
Sometimes public employees are disciplined for speaking out against government corruption, belonging to a particular political party, criticizing agency policy or engaging in private conduct of which the employer disapproves. For example, in his book Balancing Act: Public Employees and Free Speech, David Hudson Jr. reveal that public employees have been disciplined for:
- Criticizing a police policy that placed primarily African-American officers on the front lines of a community-policing project in certain neighborhoods. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
- Uttering a racial slur at a dinner party. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
- Complaining that a police helicopter unit was not operating safely. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
- Refusing to change a college student’s grade from an F to an “incomplete” when the student had attended only three of 15 classes. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
- Failing to remove a religious pin from a uniform. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
In one of the recent examples Robert R. Bennie, Jr., Plaintiff, v. John Munn, et al., in his official capacity as Director of the Nebraska Department of Banking and Finance, 2016 case, Robert (Bob) Bennie, like millions of Americans, was working for a private business but under government contract. What got him into trouble is that the regulators didn’t like Bennie’s political speech. Until November 2010, Bennie worked for LPL Financial (LPL). LPL is a broker-dealer, meaning it holds accounts and assets and executes financial transactions. It operates through agents like Bennie, who deal with customers. As a broker-dealer, LPL is subject to regulation by the Nebraska Department of Banking and Finance (department).
In 2010 The Lincoln Journal Star ran a story about Bennie’s role in the Tea Party political movement. The article quoted Bennie denouncing the government and politicians, including President Barack Obama. (http://journalstar.com/news/local/911/judge-dismisses-bob-bennie-lawsuit-against-state-banking-officials/article_4fd26a84-7c0f-57cb-b4e4-838ad79f39bb.html)
After the article was published Bennie noticed a change of behavior of LPL towards his work. LPL explained that since a recent internal reorganization, Bennie’s proposed advertisements were reviewed by a senior analyst. Department employees asked whether LPL had any guidelines about agents like Bennie publicly communicating their political views. After living under such restrictions Bennie contacted Nebraska Governor David Heineman and told him the department was targeting Bennie and harassing him.
Bennie then sued, arguing that the state regulators violated the First Amendment by retaliating against Bennie through their emails to his employer based on his political speech.
The emails were certainly problematic, because it implicitly pressured LPL to curtail Bennie’s speech to avoid problems with the department. The emails were also evidence of a deeper problem, as the district court found: that the state regulators “were looking for reasons to go after” Bennie and “made regulatory inquiries of LPL that were motivated, to varying degrees, by the content of Bernie’s speech.” ( George Lee, Contributor to Forbes magazine)
For the state regulators to allow their apparent disagreement with or even distaste for what Bennie had to say politically, or how he said it, to influence how the department treated him and his employer was wholly inappropriate and also absolutely inconsistent with the First Amendment. Bennie has filed a petition for certiorari by the U.S. Supreme Court.
Branti (Branti v. Finkel, 445 U.S. 507 (1980) is one of a series of cases in which the court has prevented firings based on the political beliefs of employees. Branti was one of the six assistant public defenders fired from a country defender’s office simply because they were Republicans and the newly appointed County Defender was a Democrat. The court cited that sometimes it may be permissible to use political affiliation as a basis for hiring and discharge decisions (for example no one would doubt the right of the President to hire only cabinet officers or speechwriters that share his or her political affiliation) but said that, assistant county defenders did not hold the type of decision making power that made political affiliation an appropriate consideration. ((Branti v. Finkel, 445 U.S. 507 (1980))
Ten years later in Rutan v Republic party of Illinois (Rutan v. Republican Party of Illinois (88-1872), 497 U.S. 62 (1990) a case involving the staffing of Illinois prisons, the Supreme Court extended protection for political beliefs to initial hiring decisions as well as decisions relating to promotions and transfers.
In 2006 in Garcetti v Ceballos (Garcetti v. Ceballos Supreme Court of the United States, 2006 547 U. S. , 126 S. Ct. 1951, 164 L. Ed. 2d 689) the court considered the First Amendment claim brought by a deputy district attorney in the Los Angeles District Attorney’s office who had been transferred and denied a promotion because of his statements to supervisors criticizing the credibility of statements made in affidavit prepared by a deputy sheriff.
In a 5 to 4 vote the Court rejected the employee’s claim holding that the First Amendment does not protect public employees’ for statement made pursuant to their official duties. According to Justice Kennedy, the critical fact in this case was that “his expressions were made pursuant to his duties as a calendar deputy. Considering the fact that Ceballos spoke as a prosecutor fulfilling his responsibility to advise his supervisor about how to proceed with a pending case-distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline”.
In another case Pickering v. Board of Education (Pickering v.Board of Education
391 U.S. 563 (1968) a public school teacher was fired for writing a letter to a newspaper critical of the local school board. In ordering the teacher reinstated the court found that a public employee’s statements on matter of public concern could not be the basis for discharge unless the statement were of the sort to cause a substantial interference with the ability of the employees to continue to do his job.
In Bob Bennie’s case, the circuit court acknowledged that the regulators’ actions were inconsistent with the First Amendment, but affirmed the ruling because two of the three circuit court judges could not find “clear error” in the trial court’s findings on the “ordinary firmness” test. In a split decision in May 2016, the 8th Circuit upheld the dismissal of Bennie’s lawsuit, but called the banking officials’ conduct wholly inappropriate and “absolutely inconsistent with the First Amendment.” This case now will go to the Supreme Court.
There have been many instances like the above where public sector officers were subjected to harassment because of making opinionated statements regarding the government, religion etc.
In essence the U.S. Supreme Court has carved out an exception to its First Amendment jurisprudence for public employees. Basic free-speech rules that apply outside the workplace sometimes have little relevance for public employees. For instance, that as a general matter the First Amendment prohibits governmental discrimination based on the content or viewpoint of an individual’s speech. For example, a law prohibiting citizens from criticizing elected officials would be impermissible because it would discriminate on the basis of content, allowing praise of government officials but not allowing criticism.
Yet such fundamental First Amendment principles do not always apply to public employees in the workplace. For example, a public employee could be fired for saying, “My superior or co-worker is unqualified and corrupt.” Even though that employee would clearly be expressing a particular viewpoint, the Supreme Court has recognized that “many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.”
The reason the Supreme Court states is, public employers must maintain efficient operation of the people’s business. For that reason, it is acceptable for government employers to discipline employees for speech that undermines the integrity of the office or disrupts morale. This discipline can take many different forms, including transfer, demotion or even discharge. Unfortunately, government employers sometimes retaliate against employees for speech that concerns an important public issue a matter of “public concern,” as the Supreme Court has termed it. Because public employers and employees both have important interests at stake in these cases, the courts often are faced with the difficult task of balancing these competing interests. The Supreme Court recognizes that government employers must protect business efficiency. But the Court also has said that “the threat of dismissal of public employment is a potent means of inhibiting speech.”(Balancing Act: Public Employees and Free Speech)
If the US Supreme Court does agree to hear the Bennie case it will offer more guidance on how lower courts should proceed to balance the government’s interest in maintaining an efficient public workplace against the individual employee’s free expression.
- Bob Bennie legal case, the primary source of information for the blog post- http://www.forbes.com/sites/georgeleef/2016/10/15/regulators-retaliate-against-tea-party-activist-for-his-free-speech-and-get-away-with-it/#114a91cd2f68
- Free expression in America: A Documentary History by Sheila Suess Kennedy.
- Reflections on Freedom of speech and First Amendment by George Anastaplo.
- Rutan v Republic of Illionois- https://www.law.cornell.edu/supct/html/88-1872.ZO.html
- Rutan v Republic of Illionois- http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-cohen/protection-of-penumbral-first-amendment-rights/rutan-v-republican-party-of-illinois/
- Garcetti v Ceballos- Lexisnexis
- http://www.kentlaw.edu/faculty/mmalin/classes/PublicSectorSp09/CourseDocs/Garcetti.pdf- Garcetti v Ceballos
- https://supreme.justia.com/cases/federal/us/391/563/case.html- Pickering v Board of Education.
- Freedom of Speech- A Reference Guide to the United States Constitution- https://www.questia.com/library/117829328/freedom-of-speech-a-reference-guide-to-the-united
- Balancing Act: Public Employees and Free Speech By David L Hudson Jr