Analyzing A Government Employee's Claim For Retaliation Based Upon Alleged Free Speech Violations (42 Usc 1983)

Analyzing A Government Employee's Claim For Retaliation Based Upon Alleged Free Speech Violations (42 Usc 1983)

With the onset of social media, freedom of expression issues have come under the spotlight when it comes to employees and what they say about their employers, particularly those who work for the government. Attorney Brooke Ehrlich discusses when governmental employees free speech rights may be entitled to 1st Amendment protections and when they are not protected.

Related Questions

What is the origin of government employees' free speech protections? In short, the answer is the First Amendment. The First Amendment of the US Constitution protects its citizens' right to freedom of religion and freedom of expression from government interference. Freedom of expression includes the right to freedom of speech, as well as freedom of the press, assembly, the freedom to petition the government for redress of grievances and the rights of association and belief (the last two are considered implied rights). The extent of the protections afforded to these rights have been interpreted by the Supreme Court. For instance, the Supreme Court has held that the First Amendment applies to the entire federal government, even though it is only expressly applicable to Congress. Additionally, the due process clause of the Fourteenth Amendment has been interpreted as protecting an employee's First Amendment rights from interference by state governments. It is well known that the right to freedom of speech allows individuals to express themselves without government constraint. If the government interferes with free speech by attempting to regulate its content, the Supreme Court requires the government to provide substantial justification for that regulation. (The Court requires a less stringent test for content-neutral legislation.) The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. So Does This Mean that an Employee Can Say Anything They Want and Be Protected? Only if the employee is speaking as a private citizen, and not as an employee. The Government's ability to regulate its employees' speech differs from its regulation of the speech of its general citizenry. In the cases of Connick v. Myers (461 U.S. 138, 140, 103 S.Ct. 1684, 1686 (1983) and Pickering v. Board of Educ. of Twp. High Sch. Dist. 205 (391 U.S. 563, 568, 88 S.Ct. 1731, 1734 (1968)), the Supreme Court held...