It's a very important question for every man and woman who wears a badge. To what extent does the First Amendment protect a public employee's ability to speak freely?
In 1967, the U.S. Supreme Court held in Keyishian v. Bd. of Regents that an employer may not unreasonably restrict public employees' rights. What was "reasonable" was not specified. Instead, the Court required a balance of the respective interests of the parties in making this determination.
Later in the 1968 case of Pickering v. Bd. of Education, the Court ruled that courts should weigh a public employee's right to comment on a matter of public concern against the interest of the public employer to provide efficient, effective services. Where a public employee's speech does pertain to a matter of public concern, the balance will generally tip in the employee's favor.
From many of the cases decided by the Supreme Court, the following four-step analysis has emerged in dealing with claims that an employer has unlawfully retaliated against an employee for the exercise of the employee's First Amendment right to freedom of speech:
1. Was the employee speaking pursuant to his/her ordinary job duties?
• If yes, then there is no First Amendment protection for employment purposes.
• If no, proceed to Step 2.
2. Was the employee speaking on a matter of public concern?
• If yes, proceed to Step 3.
• If no, then there is no First Amendment protection for employment purposes.
3. On balance, does the employer's or employee's interests prevail?
• If the employer's interests prevail, then there is no First Amendment protection for employment purposes.
• If the employee's interests prevail, proceed to Step 4.
4. If the employee's interests prevail, was the protected speech a substantial or motivating factor in the adverse employment action?
• If yes, then the adverse employment action constitutes unlawful retaliation.
• If no, then the adverse employment action does not constitute unlawful retaliation.
Speech and Job Duties
The first step of the analysis asks whether the employee was speaking pursuant to the employee's ordinary job duties. If so, then the analysis ends there and an employer may take action against the employee based upon the statement without the employee having any recourse under the First Amendment. If it does not, then the employer should continue to explore the remaining steps of the analysis prior to taking action.
The U.S. Supreme Court in the 2006 case of Garcetti v. Ceballos explained that "…when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes." In a later case, Lane v. Franks, the Court clarified that speech outside the scope of a public employee's ordinary job duties can be speech as a citizen for First Amendment purposes even when it relates to the employee's public employment or concerns information learned during that employment.
In determining what the "ordinary duties" of the employee are, the court will generally take a practical view and look to not only those duties in an employee's job description, but also those duties that the individual is expected to perform.
There are several cases focusing on this particular issue, including Crouse v. Town of Moncks Corner, Debrito v. City of St. Joseph, Anderson v. Valdez, Rotunno v. Town of Stratford, Howell v. Town of Ball, Moss v. City of Pembroke Pines, Hartman v. City of New Orleans, Buehrle v. City of O'Fallon, Missouri, Ramey v. U.S. Marshals Service, Foley v. Town of Randolph, and Reilly v. City of Atlantic City.
Matters of Public Concern
The second step of the analysis asks whether the employee was speaking on a "matter of public concern." If they were not, then the analysis ends there, and an employer may take action against the employee based upon the statement without the employee having any recourse under the First Amendment. If they were, however, then the employer should continue to explore the remaining steps of the analysis prior to taking action.
A matter of public concern is one upon which "free and open debate is vital to informed decision-making by the electorate." This will generally include political, economic and social issues, racial discrimination, and the government's use of its financial resources. Determining whether a public employee has spoken on a matter of public concern depends upon the "content, form, and context of a given statement, as revealed by the whole record."
The content, form, and context portion of the analysis requires that the court examine the following:
• Whether the statements were made at home or at work
• Whether the statements were made in public or private
• How many people heard the statements
• If the speaker's motives were primarily personal in nature.
There are four primary categories into which cases fall where a public concern has been found. These categories include: misconduct by the department, superior officers, the chief, fellow officers or the municipal government; unsafe equipment or working conditions; incompetence; and harassment or discrimination.
There are numerous cases in which courts have determined that an employee's speech did touch upon a matter of public concern, including Bagi v. City of Parma, Riccuiti v Gyzenis, Cochran v. City of Atlanta, Stinebaugh v. City of Wapakoneta, Pucci v. Nineteenth Dist. Court, Handy-Clay v. City of Memphis, Tennessee, Hutchins v. Clark, Wainscott v. Henry, and Rankin v. McPherson.
There are also numerous cases in which courts have determined that an employee's speech did not touch upon a matter of public concern, including Naghtin v. Montague Fire Dist. Board, Holbrook v. Dumas, May v. Sasser, Todora v. Buskirk, Garceau v. City of Flint, Borough of Duryea v. Guarnieri, Reynolds v. Town of Suffield, City of San Diego, California, v. Roe, Leverington v. City of Colorado Springs, Gross v. Town of Cicero, Illinois, Desrochers v. City of San Bernardino, Miller v. Clinton County, Miller v. Administrative Office of the Courts, Thaeter v. Palm Beach County Sheriff's Office, Durgin v. City of East St. Louis, Illinois, Daniels v. City of Arlington, and Lawrence v. James.
The Balancing Test
The third prong of the test requires that the Court "weigh the strength of the employee's interests against the government's interest in the efficient administration of the workplace." This is what is referred to as the Pickering balancing test.
In making this determination, courts will generally consider the following factors:
• Does the statement impair discipline by superiors?
• Does the statement impair harmony among coworkers?
• Does the statement have a detrimental impact on close working relationships for which personal loyalty and confidence are necessary?
• Does the statement impede the performance of the speaker's duties?
• Does the statement interfere with the regular operation of the enterprise?
• Does the speaker serve in a confidential, policy making or public contact role in the organization?
• Does the statement undermine the mission of the police department?
• Does the statement conflict with the speaker's responsibilities?
• Has the speaker abused authority and public accountability?
The more these questions are answered in the affirmative, the better the employer's argument for restricting the statement or disciplining the employee for making the statement.
Historically speaking, there are fewer cases where courts have ruled that the balance weighed in favor of the employee. However, there are some, including Purvines v. City of Crestview and Cooper v. Smith.
There are several cases in which the courts have ruled that the balance weighed in favor of the employer, including: Lynch v. Ackley, LeFande v. District of Columbia, O'Connor v. Steeves, Shirvell v. Dept. of Attorney General, Dible v. City of Chandler, Hinshaw v. Smith, Locurto v. Guiliani, and McMullen v. Carson.
If the employee satisfies the first three elements, then the employee must also prove that he or she was disciplined as a result of the statement. To do this, the disciplined officer must show that "but for" the protected statements he or she would not have received the punishment imposed (Mt. Healthy Bd. of Education v. Doyle). If the disciplined officer satisfies this, the burden then shifts to the employer to show that there were sufficient grounds, other than the speech, to discipline the employee.
In determining whether the protected speech was actually the cause for the adverse employment action, courts will generally consider the following factors:
• Have other officers been disciplined for the same conduct?
• Does the discipline imposed exceed the discipline imposed on similarly situated officers in the past?
• Has a substantial period of time elapsed since the conduct justifying the discipline occurred? (Note: the longer the time lapse, the more it appears the discipline was prompted by the officer's recent "protected speech" and not his or her prior conduct.)
• How many complaints has the department received regarding the officer?
• Has the officer ever been formally, or informally, reprimanded in the past? If so, how many times, and what was the nature of those offenses?
The more times the officer has been reprimanded, along with the more egregious the offenses, the greater the likelihood that the court will find for the department. Also, the more detailed the documentation, the greater the likelihood the discipline will be upheld.
There are a variety of cases that focus on the issue of causation related to public employee freedom of speeches, including: Bailey v. Wheeler, McGunigle v. City of Quincy, Swetlik v. Crawford, Dew v. City of Scappoose, Tharling v. City of Port Lavaca, and Skaarup v. City of North Las Vegas.
So, as a government employee you can't say whatever you want on social media and expect to be protected by the First Amendment.
Public agencies and employees must be aware of the contours of the freedom of speech as applied to public employees. The rules of engagement should be clear to put all parties on notice as to what behavior and speech will be tolerated and what is inconsistent with agency policy.
When agencies seek to take action against employees based upon their "speech" or "expression," agencies are best advised to utilize the four-prong test that we have discussed. While agencies can't limit their employees from posting on social media you as the employee do so at your own risk.
Eric Daigle is founder of Daigle Law Group, LLC, a firm that specializes in law enforcement operations. A former Connecticut State Police officer, Daigle focuses on civil rights actions, including police misconduct litigation. He is a legal advisor for police agencies across the country. www.daiglelawgroup.com