Can government workers be fired for exercising their right to free speech?

The First Amendment prevents the federal, state, and local governments from infringing on rights of religion, press, speech, assembly, and petition. While workers of private companies are not protected from being fired for what they say, government workers may be protected from retaliation for exercising some of their First Amendment rights. Specifically, they are protected with regard to speech when talking about issues believed to be of public concern. They are not protected from retaliation for everything they say, however.

In 1968 the Supreme Court ruled in Pickering v. Board of Education that a government worker’s interest in remarking on issues of public concern needed to be balanced against the government’s interest as an employer in increasing the efficiency of public services that it offers through its workers. The Court noted that government workers are often in the best position to know any problems within government agencies, and those problems should be transparent, so the public can decide how best to address them. In that case, the Supreme Court also said that this type of speech isn’t protected if it knowingly or recklessly includes false statements. Critical to this case was that the teacher plaintiff was speaking more as a citizen than as a government employee when writing the letter to the editor with which the school district took issue and for which it terminated him.

A court deciding whether a government worker was impermissibly subjected to retaliation under the First Amendment must look at:  (1) whether the plaintiff was involved in an activity protected by the Constitution, (2) whether the government’s actions injured the plaintiff, such that an ordinary person would be deterred from continuing with those activities, (3) whether the injurious actions stemmed at least partly from utilizing one’s constitutional rights, (4) whether the worker’s speech was about a subject of public interest, and (5) whether the worker’s interest as a citizen in talking about public interest matters outweighs the government’s interest in efficient service provision.

Matters that have been found to be of public concern have varied. They include how school funds are allocated, testifying in front of the state legislature, a school district’s racially discriminatory practices, government waste, a failure to provide safe working conditions, and any other matters of social, political, or other community concern.

In addition to protection through Supreme Court jurisprudence related to the First Amendment, government employees may have other protections. For example, if you are a government worker who belongs to a union, you might be protected from any termination without just cause based on your union contract. State and local governments also sometimes have civil service laws that promise employment will continue as long as you have good behavior. When these civil service laws are in place, the government agency is required to hold hearings to decide whether there’s enough evidence to justify discharging or suspending for a long period a government employee.

Government employees who have these rights need to carefully determine whether to pursue protection under a civil service law or a First Amendment lawsuit. A lot depends on the circumstances of the termination and the content of the speech, making it imperative to consult an attorney.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding retaliation, discrimination, or other employment law matters. Contact us at (214) 528-6500 or via our online intake form.

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