Speech Involving Public Concerns
If you are a local, state, or federal employee, both the First Amendment Fourteenth Amendments protect you from retaliation for exercising free speech in some employment-related situations. This means that when you exercise your right to free speech, your government employer generally cannot retaliate against you with negative employment action.
The U.S. Supreme Court, in Pickering v. Board of Education, set the rule that public employee speech involving matters of public concern is protected speech under the First Amendment. In determining whether the speech involves matters of public concern, the court created a balancing test:
The interests of the employee as a citizen, in commenting on matters of public concern must be balanced against the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees.
What this means for all of my public employee readers is that you can speak out at the workplace or at public meetings so long as what you say is a matter of public concern. And that the content of your statement is more important than your public employer’s interest in having an efficient workplace.
This protection is afforded to public employees because public employees are often in the best position to learn the deficiencies in the government agencies for which they work and it is important to allow government employees to make these deficiencies known to the public, so the community can debate how to improve them.
Speech Involving Private Concerns
Things get tricky when the public employee must determine whether the speech is a matter of public concern or an issue related to employment. When speaking, a public employee must speak as a citizen, not as an employee. And further, the subject of the speech must be a matter of public concern, not a personal one.
The Eleventh Circuit recently determined, in Alves v. Board of Regents, that a group of public employees who had been terminated after submitting a memorandum to supervisors alleging leadership and management issues leading to deficiencies in management was not protected speech under the First Amendment.
The Court held that the memorandum concerned the employees’ regular job duties and their ability to fulfill those job duties, and as a result, the employees were speaking as employees, and not as citizens. If the speech takes the form of a private employee grievance about a superior’s management and leadership, it is probably not protected under the First Amendment.