Balancing free speech and government interests

The First Amendment to the United States Constitution, guaranteeing freedom of speech (among other rights), is both widely celebrated and hotly debated. For example, the First Amendment will likely play a pivotal role in former President Donald Trump’s challenge of the now-stayed “gag order” in the D.C. District restricting his speech targeting certain persons involved in his prosecution. It also was central to the order of the Fifth Circuit Court of Appeals upholding an injunction against President Joe Biden’s White House (and other government agencies), based on a finding of likely violations of the First Amendment arising from alleged coercion of social media companies to moderate certain Covid-related speech.

Notwithstanding these blockbuster disputes involving current and former presidents, the First Amendment also protects the rights of everyday government employees who exercise their speech rights. Indeed, in the context of government workplaces, the First Amendment raises complex questions about where the boundaries of individual expression end and the interests of the federal employers begin.

The First Amendment in the public workplace

The First Amendment provides powerful protection from government censorship, stating: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This protection is not absolute, however.

The Supreme Court, in Pickering v. Board of Education (1968), established a line of precedent for determining when government agencies may or may not regulate the speech of their employees.

Under the Pickering balancing test, government employers must respect the fundamental free speech rights of their employees while also maintaining a functional and productive workplace. This balancing act is often a highly fact-specific task that courts must navigate.

When making its determination, courts consider:

1. Whether the speech addressed a matter of public concern, as opposed to a matter of personal concern to the employee. While boundaries of “public concern” are not well defined, the Supreme Court in City of San Diego, Cal. v. Roe (2004) wrote that “public concern is something that is of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.”

2. Whether the speech was spoken in the capacity of a private citizen or as a public employee. The Supreme Court in Garcetti v. Ceballos (2006) 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.” In Garcetti, a deputy district attorney was found to have spoken as a public employee when he admitted that a memorandum he wrote was created as part of his duties as a prosecutor. In contrast, the teacher in Pickering spoke as a private citizen because his letter to a local newspaper, which criticized his school’s allocation of financial resources between educational and athletic programs and officials’ concealment of the same, did not affect the performance of his daily duties in the classroom nor did it interfere with the regular operation of the school generally.

3. Whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. In Garcetti, the Supreme Court explained that public employees “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” In another case, Connick v. Myers (1983), the Supreme Court cautioned that “a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern.”

Thus, for government employees who demonstrate that the speech at issue was made as a private citizen about a matter of public concern, the government entity must show it had an adequate justification for treating the employee differently from any other citizen (often to justify some adverse employment action precipitated by the speech). If the government agency is not able to demonstrate an adequate justification, the employee may have a successful cause of action for retaliation under the First Amendment.

Navigating the intricacies of the First Amendment in government workplaces is an ongoing challenge, one that reminds us of the vital role free speech plays in the foundation of the United States. Understanding the limitations on government employees’ speech is essential to maintaining the integrity of government institutions, because government employees are often the best situated to identify government waste and corruption.

Ultimately, however, the First Amendment’s safeguards of free speech (and other) rights of public employees are not absolute. They must be balanced against the interests of the state, to ensure that the government functions efficiently. For the foreseeable future, courts will continue to struggle with balancing these important, fact-specific issues.