In the United States, certain rights are considered so fundamental and integral to our society that they are lauded as part of the foundation of our democratic society. Perhaps no right is praised as highly in this respect than our right to free speech under the First Amendment. However, despite this vaunted status, this right and others can be regulated by our employers and workplace to a certain extent, at least. This reality is especially true for private employees. As a general rule, employees of private companies have few free speech protections in the workplace beyond the ones implemented by legislation such as Title VII. (( Freedom Of Speech In The Workplace: The First Amendment Revisited, FindLaw, http://corporate.findlaw.com/law-library/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html (last accessed Feb. 15, 2018.) )) However, this is not the case for public employees who do enjoy certain First Amendment Protections at work.
For public employees, the Supreme Court has articulated certain elements the employee must satisfy before they are entitled to free speech protections. First, the employee must be speaking as a private citizen.(( Lata Nott & Melemaikalani Moniz, GOVERNMENT EMPLOYEES & FIRST AMENDMENT OVERVIEW, Newseum Institute (Apr. 24, 2017), http://www.newseuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-and-government-employees-overview/)) While the Court has not been exactly clear in what this requirement entails, the Court has specified that such speech will not be protected when acting pursuant to their official job duties.((Id.)) Thus, “many government employees who are performing whistle-blowing functions – meaning, disclosing information about a government agency violating the law, wasting money, or abusing its authority – are not protected by the First Amendment, since reporting misconduct is often part of an employee’s official duties.”((Id.)) However, it is worth noting that many states, as well as the federal government, have implemented laws to protect such whistle-blowers to complement the Court’s ruling in this issue.((Id.))
Even if the employee meets this first criterion though, “the First Amendment’s protection of government employee speech is limited to speech that addresses a matter of public concern.”((Jeannete Cox, A Chill Around the Water Cooler: First Amendment in the Workplace, ABA (Winter 2015), https://www.americanbar.org/publications/insights_on_law_andsociety/15/winter-2015/chill-around-the-water-cooler.html)) A statement is deemed to fall into this category when it “relates to a social, political or community issue.”(( Nott, supra note 2)) Because of the broadness of this definition, the Supreme Court has ruled that “the question of whether an employee’s speech addresses a matter of public concern should be determined by looking at the content, form, and context of a given statement, as revealed by the whole record, and not by applying a common, standardized rule.”((Nott, Id.))
Finally, even if the employee’s speech meets these elements, the court may still rule that the speech is not protected “if the speech has potential to disrupt operational efficiency.”(( Cox, supra note 6)) In fact, “[i]n many cases, courts conclude that the government’s interest in the smooth functioning of the workplace outweighs the government employee’s First Amendment speech rights.”((Cox, Id.))
In light of this caselaw, it is safe to say the courts often defer to public employers and their ability to regulate the workplace when deciding whether or not the employee’s speech is protected under the First Amendment. Despite this, however, these protections do exist for public employees and provide those employees possible recourse if they are disciplined or terminated for speech in the workplace. Therefore, if you feel as if your First Amendment rights or any other rights have been infringed upon by your employer, you should consult with counsel immediately to discuss your possible remedies.