July 1998

Are There Limits on Employee Free Speech Rights?

QUESTION:  

While I recognize that public employees must be allowed to exercise their Constitutional rights, I'm sure there must be limits.  For example, when can "free speech" lose its protection and be overcome by an employer's legitimate need for workplace harmony and efficiency?

ANSWER: 

Recognizing the conflict between an employer's needs and the rights of its employees, courts will generally protect the free speech rights of an employee only when the speech concerns a matter of "public concern," and where the employee's interests are not outweighed by the employer's interest in promoting the efficiency of the agency.

BACKGROUND:

Courts have long recognized limitations to the principle of "free speech" under the First Amendment to the Constitution.  In this context, they have set up a two-prong test to determine whether given speech is worthy of protection.

First, the speech must concern a matter of "public concern."  In order to be protected, the speech- in content, form and context - must relate to matters of "political, social or other concern."  While this requirement is fairly broad and nearly all-encompassing, speech pertaining solely to personal grievances against the employer is not protected by the Constitution.

Second, the District's interest in operation in an efficient manner must not outweigh the employee's interests in unrestrained speech.  In many contexts, the courts will place restrictions on the time, place and manner in which speech may be exercised.  For example, while a city council auditorium is a public building, the government may restrain a citizen who disrupts a meeting with otherwise permissible "free speech."  Thus, where the public employer's interest outweighs the individual's right to expression, similar restrictions may be placed.

One example of such a restriction is a policy against solicitation on the job, or distributing or posting flyers.  Even where the subject of the flyer might be a matter of clear public concern - perhaps announcing an upcoming public hearing and urging attendance on behalf of a contested  proposal - the employer's interest in efficiency operating its business outweighs the employee's interest in expressing this message at that time and place and in that manner.

As public employers, your focus should be on three things:  First, what is the "free speech" which has raised concerns?  If it is not of "public concern" (e.g. it concerns an employee's dissatisfaction with his/her recent performance review), there is no protection.  Second, how does it affect the operation of the business?  If there is no significant potential disruption, there is little chance a restriction would be upheld.  Third, remain consistent.  To the extent that an employer is inconsistent (e.g. allows some political speech while stifling others), any challenge to its restrictions will have more chance of success.

Finally, keep in mind that freedom of expression has many forceful advocates. If such disputes do arise, a number of public interest legal and other groups will often fall over themselves to redress the alleged Constitutional slight.  Therefore, pick your battles prudently, making sure that the employer's interests clearly outweigh the public concern involved. 

The CSRMA Employment Hotline provides free legal advise to all CSRMA members on various employment issues.  For more information on the hotline please call Lynn Lieber with Fisher & Phillips at (650)592-6160.