Flag burning. Letters to the Editor. Peaceful Protest. Taking a knee. Graphic t-shirts.
The First Amendment is regularly cited in a variety of situations, but does the Free Speech protections apply to public sector employees? And if so, how? Or when?
- Supreme Court case law development of free speech case law for public employees
- What is a protected communication
- The role and impact of social media communications
- Regulation of off-duty conduct
- The role of policies and procedures
- Sustainable rules and policies
- Employer liability risks under the First Amendment and risk mitigation
Justice Clearinghouse Editors (JCH): When we think of the First Amendment, we often think of Free Speech or Freedom of the Press. In the context of your webinar, though, – of public sector employment – what does Free Speech typically include?
Rick Hodsdon: The Frist Amendment is probably more accurately thought of as freedom of communication. In history, it involved speech or print in the modern world it applies to any form of communication to the extent the federal courts have held something as simple as hitting a Like button on a politician's Facebook page is protected communication.
Protected communications have been held to include not only electronic communications and traditional speech and print communications but even what people wear on the person and body art, as well as conduct such as flag burning. The most recent First Amendment case on communications involving union membership has held protected communications includes the right to not communicate or support those whose communications a public employee does not agree with.
JCH: Why are public sector employees unique?
Rick: The primary difference between the public and private employer is the former is covered by the First Amendment while the later is not. The Constitution's free communication elements provide the government shall not take action to interfere with communication. Like most aspects of the Bill of Rights, few if any restrictions are placed on private individuals or entities. Private employers are bound by laws such as Title VII protections against religious discrimination but simply are not subject to the Constitutional provisions that cover governments.
JCH: What are some of the most important things an agency should consider as they are developing such policies?
Rick: The Supreme Court has developed a significant body of law on the balancing of a public employee's communications rights and discipline for policy violations. Under case law, an employer should work with legal counsel to strike a balance using the court's various legal tests of public interest versus private concerns and the additional test of the in the course of duty doctrine.
Key points to address and consider in any personnel policy include prohibiting the use of official resources for expression of personal views, the nature of the communication in terms of source of the factual information being communicated and whether it is public data or not, and whether the communication caused actual disruption to the workplace or means the employee can no longer perform the job effectively.
To the extent work rules on such matters as appearance and other non-traditional forms of communication can be made content neutral such as by prohibiting visible body art rather than "offensive" visible body art, they are much more likely to be upheld as a matter of employer prerogative.
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