What Is First Amendment Retaliation and How Can an Employee Bring a Claim of Retaliation?

The First Amendment of the United States Constitution protects citizens’ right to free speech, assembly, and religion, among other things. However, not only does the First Amendment require people to be able to freely express themselves without fear of criminal repercussions, it also prohibits the government from taking other actions against them.

The First Amendment applies to all government actors, including public employers. In the context of Texas employment law, the First Amendment protects employees who express themselves in a manner that may be frowned upon by their employers. The idea behind retaliation claims is that the First Amendment would have little effect if people were afraid to exercise their rights due to the potential that they could be terminated or demoted.

There are three elements to a First Amendment retaliation claim. First, the activity or speech the employee engaged in must be protected under the First Amendment. This means comments or actions that are obscene, meant to incite violence or defame another will not likely be protected; however, most other speech is protected under the First Amendment.

Next, the employee must show that some adverse action was taken against them by a government official. In the public-employment context, this would be a state or federal employer. Thus, adverse action taken by a government contractor against an employer may not fit under a First Amendment retaliation claim because the action was taken by a private company rather than by the government itself.

Finally, an employee must establish a causal link between the employee’s protected speech and the adverse action taken by the government actor. Essentially, an employee must show that the employer’s actions were motivated at least in part by the employee’s actions. Because it can be difficult to explicitly prove this by direct evidence, many cases rely on strong circumstantial evidence.

Have You Been Retaliated Against After Engaging in Protected Speech?

If you have recently suffered any type of adverse employment action based on exercising your First Amendment rights, you should contact the attorneys at Rob Wiley, P.C. Attorney Rob Wiley has assembled a hardworking team of Dallas employment lawyers to assist him in representing Texas employees who have had their rights violated by their employers. We represent both public- and private-sector employees in all types of employment law issues. To learn more, call 214-528-6500 to schedule a consultation.

More Blog Posts:

Protecting Texas Employees’ Rights Through Increasing Minimum Wage and Securing Unpaid Wages, Dallas Employment Lawyer Blog, July 20, 2018.

How a Texas Employee Can Prove a Case of Employment Discrimination, Dallas Employment Lawyer Blog, May 2, 2018.


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