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| Samuel Morris |
Private Sector
The First Amendment is often cited as guaranteeing the absolute right to free speech. However, contrary to popular belief, the right to free speech in the workplace is anything but absolute and often not protected from employer retribution.
A private sector employee might think that he or she is free to espouse the theory that the boss is an anarchist and be protected from retribution by the First Amendment. That private employee would be incorrect, since only state action invokes free speech rights.
The National Labor Relations Board's Division of Advice has recently flattened any hope that free speech is protected concerted activity in the private sector. In a recent advice memo,[2] an employee of a labor union was deemed unprotected when he publicly testified for police reform and was fired, "because the Act does not protect employee political advocacy that has no nexus to a specifically identified employment concern."
Public Sector
By contrast, public sector employees enjoy First Amendment protections that private employees do not. But the free speech rights of public employees are not unabridged.
In Garcetti v. Ceballos in 2006, a deputy district attorney's venting of doubts about a case he was forced to proceed with were not protected against retaliation by his employer because he vented his doubts in his capacity as an employee, not as a private citizen addressing a matter of public concern.
While the U.S. Supreme Court noted that it is "clear that public employees do not surrender all their First Amendment rights by reason of their employment," the court also reasoned that "the First Amendment [only] protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern."[3] The rule that we get from Garcetti is that the speech of a public employee, even on matters of public concern, is not protected under the First Amendment if uttered as part of that employee's duties.
In Lalowski v. City of Des Plaines in 2015, the U.S. Court of Appeals for the Seventh Circuit reaffirmed the spirit of the Garcetti court when it held that the profane rants of an off-duty police officer directed at abortion protestors were not protected under the First Amendment.[4]
There, the plaintiff, a police officer, noticed protestors forming a picket line outside an abortion clinic. He briefly stopped to speak with some of the protestors in his marked police cruiser as he was on his way back to the police station at the end of his shift. The initial conversation between the plaintiff and the protestors quickly became adversarial and after the plaintiff enjoined the protestors not to block anyone from entering the clinic, he left.
Following the end of his shift and now in plain clothes, he returned to the protest to continue his discussion with the protestors and reminded them that he was an off-duty police officer, but told the protestors that what he was not speaking in his capacity as a police officer. The plaintiff took exception to the protestors' use of signs with graphic imagery and asked several of the female protestors why they felt they needed to use that imagery. The protestors responded that they wanted people to know the truth about abortion.
The off-duty policeman responded that the truth was sometimes painful and by way of illustration called out several of the protestors for being fat, using abusive and profane language. Following this exchange, the protestors complained to the police department, which opened an investigation and subsequently terminated the plaintiff's employment.
Following a series of appeals, the case arrived at the Seventh Circuit which affirmed the trial court's decision to uphold the termination reasoning that
As a result of the capacity in which he spoke, "Lalowski's speech interests were diminished."[6]although Lalowski was off duty when he engaged in the speech at issue, he cannot be regarded as a member of the general public [because] [h]e first confronted the demonstrators while on duty. [T]his second encounter was a mere continuation ... of the ... on-duty confrontation.[5]
What Speech Is Protected From Employer Retaliation?
Generally, for a public employee's speech to be protected under the First Amendment, it must (1) be made outside of the employee's duties and (2) be of public concern.[7]
For example, suppose Bubba is an employee of the city of Nowhere, Tennessee. Bubba supports the incumbent, Izzy, for reelection. Bubba wants to show his support for Izzy and does so by placing an "Izzy 2020" bumper sticker on his truck. Bubba drives his truck to work the next day and parks it in his usual spot in the city of Nowhere employee lot. Bubba's supervisor, Charline, finds Bubba's political opinion distasteful. Can Charline discipline Bubba for his bumper sticker?
Bubba's bumper sticker is speech outside of his duties as a public employee. Further, the sticker involves a matter of public concern because it relates to an election. Therefore, the Izzy 2020 bumper sticker is speech of the type protected by the First Amendment.
What Speech Is Unprotected From Employer Retaliation?
What if Bubba parks in the city of Nowhere municipal employee lot, and his sticker used profanity against Izzy's opponent, Fred, and said, "Lock Him Up!" Would Bubba be out of a job?
In the 2016 U.S. Court of Appeals for the Tenth Circuit case of Williams v. McKee, a municipal employee was terminated for failing to remove a bumper sticker that read, "Still voting Democrat? You must be stuck on stupid."[8] The former employee brought suit against his public employer for violation of his First Amendment right to free speech.
The U.S. District Court for the District of Colorado granted a motion to dismiss in favor of the employer and the employee appealed. On appeal, the Tenth Circuit affirmed and held that the termination of the public employee was lawful, reasoning that "a government employer may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large."[9]
In affirming the dismissal, the Tenth Circuit stated:
With respect to the offending language of the bumper sticker, the court stated that it "could easily spark conflict with fellow employees or the public."[11] Because the employee was a public servant, and because the employee's vehicle was parked in a municipal employee space, the Tenth Circuit held that the bumper sticker was not protected by the First Amendment. Bubba's Izzy-boosting cut on Fred is therefore unprotected.[T]he Defendants conceded Williams' speech was unrelated to his official duties and touched on a matter of public concern, but asserted that [the defendant's] interest in limiting [the plaintiff's] speech ... outweighed [the plaintiff's] interest in displaying his bumper sticker while [the plaintiff] was on duty and his car was parked in [a municipal employee spot.][10]
Practical Implications
Private sector employees enjoy protected speech only when it relates to union activity, or if the discipline imposed does not meet a just cause standard under a collective bargaining agreement. The First Amendment does not apply.
Public sector workers do have First Amendment Rights. But the public employee's interest in self-expression can be at odds with the public employer's interest in accomplishing its goals of efficient and effective provision of public services.
Even provocative, prurient or profane language in an employee's personal speech that does not materially erode a public employer's provision of services remains protected. And mere political opinion expressed outside the scope of that employee's duties, even if at the workplace, is free speech.
But a public employee's whining to the general public about his onerous work, or his utterings that constitute an invitation to violence, are subject to discipline. Such forms of speech are not protected by the First Amendment. A police officer's public pronouncement of his political leanings while on duty would likewise likely be deemed to interfere with his job duties and be unprotected.
Samuel Morris is an attorney at Godwin Morris Laurenzi & Bloomfield PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://nypost.com/2020/10/25/nypd-officer-who-blared-trump-2020-over-cop-car-loudspeaker-suspended/.
[2] UFCW 1994, 5-CA-261825.
[3] Garcetti v. Ceballos
, 547 U.S. 410, 417 (2006).[4] Lalowski v. City of Des Plaines
, 789 F.3d 784 (7th Cir. 2015).[5] Id. at 792–93.
[6] Id. at 793.
[7] Id. at 790–91
[8] Williams v. McKee
, 655 F. App'x 677 (10th Cir. 2016).[9] Id. at 683.
[10] Id.
[11] Id. at 684.
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