Government as Employer: Free Expression Generally.

In recent decades, the Court has eliminated the “right-privilege” distinction with respect to public employees’ free speech rights. Application of that distinction to the public employment context was epitomized in the famous sentence of Justice Holmes’: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”788 The Supreme Court embraced this application in the early 1950s, first affirming a lower court decision by an evenly divided vote,789 and soon after applying the distinction itself. Upholding a prohibition on employment as teachers of persons who advocated the desirability of overthrowing the government, the Court declared that “[i]t is clear that such persons have the right under our law to assemble, speak, think and believe as they will. . . . It is equally clear that they have no right to work for the state in the school system on their own terms. They may work for the school system under reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.”790

The same year, however, the Court expressly rejected the right-privilege doctrine in another loyalty case. Voiding a loyalty oath requirement conditioned on mere membership in suspect organizations, the Court reasoned that the interest of public employees in being free of such an imposition was substantial. “There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. . . . [W]e need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.”791 The premise here—that there is a constitutional claim against dismissal or rejection—has faded in subsequent cases; the rationale now is that, although government may deny employment, or any benefit for that matter, for any number of reasons, it may not deny employment or other benefits on a basis that infringes a person’s constitutionally protected interests. “For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Such interference with constitutional rights is impermissible.”792

However, the fact that government does not have carte blanche in dealing with the constitutional rights of its employees does not mean that it has no power at all. “[I]t cannot be gainsaid,” the Court said in Pickering v. Board of Education, “that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”793 Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reflecting on the administration of the school system. The letter also contained several factual errors. “The problem in any case,” Justice Marshall wrote for the Court, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”794 The Court laid down no general standard, but undertook a suggestive analysis. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day-to-day personal contact, that problems of discipline or of harmony among coworkers, or problems of personal loyalty and confidence, would arise.795 The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reflected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions that the community should be aware of. “In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”796

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,797 sustained the constitutionality of a federal law that authorized the removal or suspension without pay of an employee “for such cause as will promote the efficiency of the service” when the “cause” cited concerned speech by the employee. He had charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, “is without doubt intended to authorize dismissal for speech as well as other conduct.” But, recurring to its Letter Carriers analysis,798 it noted that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statutory enactment all the myriad situations that arise in the course of employment, and inasmuch as the language used was informed by developed principles of agency adjudication coupled with a procedure for obtaining legal counsel from the agency on the interpretation of the law.

799 Nor was the language overbroad, continued the Court, because it “proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the government as an employer. . . . We hold that the language ‘such cause as will promote the efficiency of the service’ in the Act excludes constitutionally protected speech, and that the statute is therefore not over-broad.”800

Pickering was distinguished in Connick v. Myers,801 involving what the Court characterized in the main as an employee grievance rather than an effort to inform the public on a matter of public concern. The employee, an assistant district attorney involved in a dispute with her supervisor over transfer to a different section, was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale. The Court found this firing permissible. “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”802 Whether an employee’s speech addresses a matter of public concern, the Court indicated, must be determined not only by its content, but also by its form and context.803 Because one aspect of the employee’s speech did raise matters of public concern, Connick also applied Pickering’s balancing test, holding that “a wide degree of deference is appropriate” when “close working relationships” between employer and employee are involved.804 The issue of public concern is not only a threshold inquiry, but, under Connick, still figures in the balancing of interests: “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression” and its importance to the public.805

On the other hand, the Court has indicated that an employee’s speech may be protected as relating to matters of public concern even in the absence of any effort or intent to inform the public.806 In Rankin v. McPherson807 the Court held protected an employee’s comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the President’s policies, “If they go for him again, I hope they get him.” Indeed, the Court in McPherson emphasized the clerical employee’s lack of contact with the public in concluding that the employer’s interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee’s First Amendment rights.808

In City of San Diego v. Roe,809 the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s “expression does not qualify as a matter of public concern . . . and Pickering balancing does not come into play.”810 The Court also noted that the officer’s speech, unlike federal employees’ speech in United States v. National Treasury Employees Union (NTEU),811 “was linked to his official status as a police officer, and designed to exploit his employer’s image,” and therefore “was detrimental to the mission and functions of his employer.”812 The Court, therefore, had “little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU].”813 This leaves uncertain whether, had the officer’s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern.

In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there is no protection—Pickering balancing is not to be applied—“when public employees make statements pursuant to their official duties,” even if those statements are about matters of public concern.814 In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and he sued. The Supreme Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”815 The fact that the employee’s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.816 Rather, the “controlling factor” was “that his expressions were made pursuant to his duties.”817 Therefore, another employee in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering balancing.

In distinguishing between wholly unprotected “employee speech” and quasi-protected “citizen speech,” sworn testimony outside of the scope of a public employee’s ordinary job duties appears to be “citizen speech.” In Lane v. Franks,818 the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator’s employment in the government program. The employee challenged the termination on First Amendment grounds. The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test.819 The Court noted that “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth.”820 In so holding, the Court confirmed that Garcetti‘s holding is limited to speech made in accordance with an employee’s official job duties and does not extend to speech that merely concerns information learned during that employment.

The Court in Lane ultimately found that the plaintiff ’s speech deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer.821 After Lane, some question remains about the scope of protection for public employees, such as police officers or official representatives of an agency of government, who testify pursuant to their official job duties, and whether such speech falls within the scope of Garcetti.

The protections applicable to government employees have been extended to independent government contractors, the Court announcing that “the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their protection.”822

In sum, although a public employer may not muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can,823 the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of “public concern,” then Connick applies and the employer is largely free of constitutional restraint.824 If the speech does relate to a matter of public concern, then, unless the speech was made by an employee pursuant to his duties, Pickering’s balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties825 balanced against the employee’s First Amendment rights. Although the general approach is easy to describe, it has proven difficult to apply.826 The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for “whistleblowers” add to the mix.827

Footnotes

788
McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 2d 517 (1892). back
789
Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an evenly divided Court, 341 U.S. 918 (1951). The appeals court majority, upholding the dismissal of a government employee against due process and First Amendment claims, asserted that “the plain hard fact is that so far as the Constitution is concerned there is no prohibition against the dismissal of Government employees because of their political beliefs, activities or affiliations. . . . The First Amendment guarantees free speech and assembly, but it does not guarantee Government employ.” Id. at 59. Although the Supreme Court issued no opinion in Bailey, several Justices touched on the issues in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). Justices Douglas and Jackson in separate opinions rejected the privilege doctrine as applied by the lower court in Bailey. Id. at 180, 185. Justice Black had previously rejected the doctrine in United Public Workers v. Mitchell, 330 U.S. 75, 105 (1947) (dissenting opinion). back
790
Adler v. Board of Education, 342 U.S. 458, 492–93 (1952). Justices Douglas and Black dissented, again rejecting the privilege doctrine. Id. at 508. Justice Frankfurter, who dissented on other grounds, had previously rejected the doctrine in another case, Garner v. Board of Public Works, 341 U.S. 716, 725 (1951) (concurring in part and dissenting in part). back
791
Wieman v. Updegraff, 344 U.S. 183, 190–91, 192 (1952). Some earlier cases had used a somewhat qualified statement of the privilege. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947); Garner v. Board of Public Works, 341 U.S. 716, 722 (1951). back
792
Perry v. Sindermann, 408 U.S. 593, 597 (1972) (citation omitted). In a companion case, the Court noted that the privilege basis for the appeals court’s due process holding in Bailey “has been thoroughly undermined in the ensuing years.” Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). The test now in due process and other such cases is whether government has conferred a property right in employment which it must respect, but the inquiry when it is alleged that an employee has been penalized for the assertion of a constitutional right is that stated in the text. A finding, however, that protected expression or conduct played a substantial part in the decision to dismiss or punish does not conclude the case; the employer may show by a preponderance of the evidence that the same decision would have been reached in the absence of the protected expression or conduct. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979). See Amendment 14, “The Property Interest,” infra. back
793
391 U.S. 563, 568 (1968). back
794
391 U.S. at 568. back
795
391 U.S. at 568–70. Contrast Connick v. Myers, 461 U.S. 138 (1983), where Pickering was distinguished on the basis that the employee, an assistant district attorney, worked in an environment where a close personal relationship involving loyalty and harmony was important. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Id. at 151–52. back
796
391 U.S. at 573. Pickering was extended to private communications of an employee’s views to the employer in Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), although the Court recognized that different considerations might arise in different contexts. That is, with respect to public speech, content may be determinative in weighing impairment of the government’s interests, whereas, with private speech, as “[w]hen a government employee personally confronts his immediate superior, . . . the manner, time, and place in which it is delivered” may also be relevant. Id. at 415 n.4. As discussed below, however, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that there is no First Amendment protection at all for government employees when they make statements pursuant to their official duties. back
797
416 U.S. 134 (1974). The quoted language is from 5 U.S.C. § 7501(a). back
798
Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 578–79 (1973). back
799
Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974). back
800
416 U.S. at 162. In dissent, Justice Marshall argued: “The Court’s answer is no answer at all. To accept this response is functionally to eliminate overbreadth from the First Amendment lexicon. No statute can reach and punish constitutionally protected speech. The majority has not given the statute a limiting construction but merely repeated the obvious.” Id. at 229. back
801
461 U.S. 138 (1983). back
802
461 U.S. at 146. Connick was a 5–4 decision. Justice Brennan wrote the dissent, arguing that information concerning morale at an important government office is a matter of public concern, and that the Court extended too much deference to the employer’s judgment as to disruptive effect. Id. at 163–65. back
803
461 U.S. at 147–48. Justice Brennan objected to this introduction of context, admittedly relevant in balancing interests, into the threshold issue of public concern. back
804
461 U.S. at 151–52. back
805
461 U.S. at 150. The Court explained that “a stronger showing [of interference with governmental interests] may be necessary if the employee’s speech more substantially involve[s] matters of public concern.” Id. at 152. back
806
This conclusion was implicit in Givhan, 439 U.S. 410 (1979), characterized by the Court in Connick as involving “an employee speak[ing] out as a citizen on a matter of general concern, not tied to a personal employment dispute, but . . . [speaking] privately.” 461 U.S. at 148, n.8. back
807
483 U.S. 378 (1987). This was a 5–4 decision, with Justice Marshall’s opinion of the Court being joined by Justices Brennan, Blackmun, Powell, and Stevens, and with Justice Scalia’s dissent being joined by Chief Justice Rehnquist and by Justices White and O’Connor. Justice Powell added a separate concurring opinion. back
808
“Where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful function from that employee’s private speech is minimal.” 483 U.S. at 390–91. back
809
543 U.S. 77 (2004) (per curiam). back
810
543 U.S. at 84. back
811
513 U.S. 454 (1995) (discussed under “Government as Employer: Political and Other Outside Activities,” supra). back
812
543 U.S. at 84. back
813
543 U.S. at 80. back
814
547 U.S. 410, 421 (2006). back
815
547 U.S. at 421. However, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Id. at 419. Such necessity, however, may be based on a “common-sense conclusion” rather than on “empirical data.” Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 300 (2007) (citing Garcetti). back
816
The Court cited Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), for these points. In Givhan, the Court had upheld the First Amendment right of a public school teacher to complain to the school principal about “employment policies and practices at [the] school which [she] conceived to be racially discriminatory in purpose or effect.” Id. at 413. The difference between Givhan and Ceballos was apparently that Givhan’s complaints were not made pursuant to her job duties, whereas Ceballos’ were. Therefore, Givhan spoke as a citizen whereas Ceballos spoke as a government employee. See Ceballos, 547 U.S. at 420–21. back
817
547 U.S. at 421. back
818
573 U.S. ___, No. 13–483, slip op. (2014). back
819
Id. at 9. back
820
Id. back
821
Id. at 12–13.The Court, however, held that because no relevant precedent in the lower court or in the Supreme Court clearly established that the government employer could not fire an employee because of testimony the employee gave, the defendant was entitled to qualified immunity. Id. at 13–17. back
822
Board of County Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996). See also O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 715 (1996) (government may not “retaliate[ ] against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance”). back
823
See, e.g., Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980) (political patronage systems impermissibly infringe protected belief and associational rights of employees); Madison School Dist. v. WERC, 429 U.S. 167 (1977) (school teacher may not be prevented from speaking at a public meeting in opposition to position advanced by union with exclusive representation rights). The public employer may, as may private employers, permit collective bargaining and confer on representatives of its employees the right of exclusive representation, Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223–32 (1977), but the fact that its employees may speak does not compel government to listen to them. See Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979) (employees have right to associate to present their positions to their employer but employer not constitutionally required to engage in collective bargaining). See also Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984) (public employees not members of union have no First Amendment right to meet separately with public employers compelled by state law to “meet and confer” with exclusive bargaining representative). Government may also inquire into the fitness of its employees and potential employees, but it must do so in a manner that does not needlessly endanger the expression and associational rights of those persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969). back
824
In Connick, the Court noted that it did not suggest “that Myers’ speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment.” Rather, it was beyond First Amendment protection “absent the most unusual of circumstances.” 461 U.S. at 147. In Ceballos, however, the Court, citing Connick at 147, wrote that, if an employee did not speak as a citizen on a matter of public concern, then “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” 547 U.S. at 418. back
825
In some contexts, the governmental interest is more far-reaching. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (interest in protecting secrecy of foreign intelligence sources). back
826
For analysis of efforts of lower courts to apply Pickering and Connick, see Massaro, Significant Silences: Freedom of Speech in the Public Sector Workplace, 61 S. CAL. L. REV. 1 (1987); and Allred, From Connick to Confusion: The Struggle to Define Speech on Matters of Public Concern, 64 IND. L.J. 43 (1988). In Waters v. Churchill, 511 U.S. 661 (1994), a plurality of a divided Court concluded that a public employer does not violate the First Amendment if the employer (1) had reasonably believed that the employee’s conversation involved personal matters and (2) dismissed the employee because of that reasonable belief, even if the belief was mistaken. Id. at 679–80 (plurality opinion) (O’Connor, J., joined by Rehnquist, C.J., Souter & Ginsburg, JJ.). More than two decades later, a six-Justice majority approvingly cited to the plurality opinion from Waters, concluding that the employer’s motive is dispositive in determining whether a public employee’s First Amendment rights had been violated as a result of the employer’s conduct. See Heffernan v. City of Paterson, 578 U.S. ___, No. 14–1280, slip op. at 5 (2016). In so doing, the Court held that the converse of the situation in Waters—a public employer’s firing of an employee based on the mistaken belief that the employee had engaged in activity protected by the First Amendment—was actionable as a violation of the Constitution. See id. at 6 (“After all, in the law, what is sauce for the goose is normally sauce for the gander.”). Put another way, when an employer demotes an employee to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment, “even if . . . the employer makes a factual mistake about the employee’s behavior.” Id. The Court concluded that the employer’s motivation is central with respect to public employee speech issues because of (1) the text of the First Amendment—which “focus[es] upon the activity of the Government”; and (2) the underlying purposes of the public employee speech doctrine, which is to prevent the chilling effect that results when an employee is discharged for having engaged in protected activity. Id. at 6–7. back
827
The principal federal law is the Whistleblower Protection Act of 1989, Pub. L. 101–12, 103 Stat. 16, 5 U.S.C. § 1201 note. back