The 1st Amendment Freedom of Speech has limits. Americans enjoy extraordinary freedom of expression. A citizen’s right to “freedom of speech” is famously protected from government intrusion by the 1st Amendment to the United States Constitution. That is, the 1st Amendment, like the rest of the Constitution, regulates the behavior of government. Freedom of speech is broad and generous, but not absolute. As examples, obscenity and speech that creates a “clear and present danger” may be regulated and even prohibited by government.
So, what happens when ‘the citizen’ who is speaking is a public employee, i.e., a teacher, prosecutor, or police officer, and ‘the government’ is his employer? Employers are permitted to restrict their employees’ work-related communications and conduct. So, are citizens stripped of their “freedom of speech” when they are employed by the government?
A citizen who works in public service does not give up all of his 1st Amendment rights. He is still protected when speaking as a citizen addressing matters of public concern. However, the 1st Amendment does not protect public employees against consequences from their government employer for statements made pursuant to their responsibilities as an employee. Some “speech” can be punished.
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court laid out a formula for determining when a public employee’s statements are protected as a citizen’s free speech, and when the statements are subject to employer discipline as a matter of the government’s role as employer.
In Garcetti v. Ceballos, a defense attorney asked Deputy District Attorney Ceballos to review an affidavit for discrepancies and potentially misleading information after police used the affidavit to obtain a critical search warrant. Ceballos reviewed the statement and investigated the inaccuracies he encountered. He then determined there were serious errors in the affidavit affecting the validity of the warrant and the merit of the case. Ceballos sought clarification from the deputy sheriff who wrote the affidavit, but he was not satisfied with the deputy’s explanations.
Ceballos relayed his concerns to his supervisors, and followed up with a written memo to them explaining his position and recommending dismissal of the case. The situation progressed to a second telephone conversation between Ceballos and the deputy, another memo from Ceballos to his supervisors, and finally a heated meeting between the Ceballos, his supervisors, the deputy sheriff, and the deputy’s supervisors. The District Attorney’s Office (Ceballos’s supervisors) ultimately overrode Ceballos’s protests and pursued the case. In a subsequent hearing, Ceballos was called as a witness for the defense and testified about his concerns and observations regarding the affidavit.
Ceballos then suffered a series of what he believed to be retaliatory actions by his employer, including reassignment to a less desirable position - he was reassigned from “calendar deputy,” where he supervised other attorneys, to “trial deputy.” He was also transferred to another courthouse, and denied a promotion. Ceballos sued his supervisors claiming their negative employment reactions to his memo and testimony constituted a violation of his 1st Amendment protections of free speech.
In the end, the Supreme Court supported the actions of the government supervisors, stating Ceballos’s memo was written purely pursuant to his professional duties (as opposed to his private citizen persona), and was thus subject to scrutiny and consequences from his supervisors, even though they were “the government.”
The Balancing Formula
Balancing a public employee’s interest in freedom of expression against a government employer’s interest in promoting efficient public services through the conduct of its employees, the Supreme Court provided a two-part inquiry to guide the analysis. First, determine whether the employee spoke as a citizen on a matter of public concern.
If the answer is NO, either because the employee did NOT speak as a citizen OR the speech was NOT related to a matter of public concern, then there is no 1st Amendment protection from the government employer’s reaction to the speech.
If the answer is YES, the government employee DID speak as a citizen on a matter of public concern, then 1st Amendment protections are possibly involved and further analysis is required. If the government employer retaliates against a government employee who is speaking as a citizen on a matter of public concern, the employer must adequately justify treating the employee differently from other citizens who similarly speak out. As an employer, the government has a little more latitude to limit an employee’s speech, but the restrictions must be necessary to preserve the government entity’s effective operations.
So, when a teacher writes a letter to the newspaper complaining about the funding policies of his school board, his letter constitutes speech from a citizen addressing a matter of public concern and enjoys full 1st Amendment protections. (See Pickering v. Board of Ed. Of Township High School dist. 205, Will Cty., 391 U.S. 563 (1968).
But, when a prosecutor assesses a case in a memo to his supervisors, that memo is constructed as a requirement of his public employment duties and is not protected from employment-related consequences from his ‘government’ supervisors.
The 1st Amendment protections will not extend to public employees’ expressions that are generated as a work product – that falls more to the employee/employer relationship where employers may respond negatively to the content of an employee’s work.
Public employees are still citizens who do not give up all Constitutional protections by virtue of their government employment – they may still express themselves as citizens. But, public employees do subject themselves to consequences from their employer for statements they make in the context of their work - in the same manner as other employment relationships.
A citizen’s criticism of government is a highly protected form of expression. But when writing critically about government operations is a requirement of the citizen’s public employment, those writings are subject to a government supervisor’s assessment and rebuke. In a future (near term) article in this column your author’s will address questions of policy and rule-making in this area, specifically including policy regarding expression in social media by police employees.
In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at email@example.com.