Public Employee Speech Rights: Survey of Recent Trends

Abstract

Public employees have the right to free speech in their personal capacities, but that right is tempered in many instances by the interests of their governmental employers. This piece provides an overview of the speech rights of public employees, highlighting approaches taken in recent appellate decisions. The piece ends with practical suggestions for public employers.

Keywords

discipline legal/constitutional issues local government HRM politics and merit state government HRM

Public employees throughout the country often face the risk of discipline—even termination—for their speech on controversial matters. Advances in mass communication and social media allow for off-hand, intemperate comments that once might have evaporated into the wind, to be recorded in perpetuity and broadcasted to the world. At the same time, the United States Constitution guarantees public employees a measure of free speech protection for their personal speech. In a leading decision, the Supreme Court held that the First Amendment prohibited the government from retaliating against an employee for private speech on matters of public concern unless the interests of the government “as an employer, in promoting the efficiency of the public services it performs through its employees” outweigh the “interests of the [employee], as a citizen, in commenting upon matters of public concern” (Pickering v. Board of Education of Will County Illinois High School Dist. 205, 1968).

This Pickering balancing test has been repeatedly applied by courts over the past 50 years, yet time and repetition have not resolved the persistent uncertainties about how to strike such a balance between government interests and employee speech (Hilton, 2017). One of the recurring problems is articulating which interests of government are properly considered on the government’s side of the balance. In other contexts, a listener’s reaction to speech—even if it triggers a hostile mob—is simply not a valid reason for the government to silence speech. To hold otherwise, the Supreme Court has repeatedly instructed, would be to allow a “heckler’s veto” (McCullen v. Coakley, 2014). In the context of employee speech, however, courts have struggled to articulate a consistent rationale or framework for evaluating the extent to which community or customer protests to the speech are valid reasons for punishing an employee.

This article begins to fill the holes that trip up courts in Pickering’s balancing test by surveying the state of the law and proposing a framework for evaluating the government’s interests in silencing its employees. After reviewing the basics of free speech of government employees, I discuss how federal courts have applied the Pickering balancing test, with special attention paid to the factors that courts consider. Finally, I survey different approaches that courts have used to weigh community outrage in the balancing test. I conclude with a discussion of specific implications for public employees and their managers.

Overview of Public Employee Speech Rights

For more than 50 years, the Supreme Court has consistently held that government employees do not bargain away all speech rights. Yet, at the same time, the government has greater latitude to censor the speech of its employees than it has over private citizens.

At the dawn of the 20th century, the prevailing judicial view was expressed by Justice Holmes’ quip that speakers “have a constitutional right to talk politics, but . . . no constitutional right to be a policeman” (McAuliffe v. City of New Bedford, 1892, p. 220). But by the middle of the century, a combination of increased public sector employment, more vigorous free speech enforcement in other areas, and particularly unreasonable government restrictions led to the rejection of Holmes’ dictum (Wieman v. Updegraff, 1952). As the Supreme Court would summarize a half-century later, “[t]here are some rights and freedoms so fundamental to liberty that they cannot be bargained away in a contract for public employment” (Borough of Duryea v. Guarnieri, 2011, p. 2493).

But, in fact, public employees do bargain away some expressive rights; public employees do not enjoy the virtually unfettered right to speak that nonpublic employee citizens enjoy. The Supreme Court has imposed several key limits on public employee speech that simply do not apply to the citizenry at large.

First, when a public employee speaks as part of that employee’s official duties, there is no constitutional protection (Garcetti v. Ceballos, 2006; Roberts, 2015). The government has the right to control what it—as its own entity—says, and because government officers are required to actually carry out the speaking, it follows that the government has the right to control what its officers say when they are speaking on its behalf. At the same time, however, public employees often can talk at work and about work without having that speech fit into Garcetti’s exception for speech made pursuant to one’s job duties (Lane v. Franks, 2014).

Second, certain categories of high-level, policymaking employees have severely diminished (or, perhaps, no) free speech rights. This exception is derived from a pair of Supreme Court cases that, while holding most patronage dismissals were unconstitutional, recognized there were certain high-level employees who could be selected for their political affiliation (i.e., political affiliation discrimination in hiring decisions; Branti v. Finkel, 1980; Elrod v. Burns, 1976). Lower courts have extended this reasoning to employee speech cases, reasoning “the government’s interest in appointing politically loyal employees to certain positions converges with its interest in operating an efficient workplace when dealing with policymaking employees because loyalty by those employees is an essential requirement for the efficient functioning of the workplace” (Rose v. Stephens, 2002, p. 923). Put differently, the same employer need for trust in certain employees that justifies political affiliation discrimination also justifies punishing those employees’ speech.

Third, employees enjoy First Amendment protection only for unofficial speech that touches on a matter of public concern. In contrast, when dealing with a member of the general public, the government lacks the power to restrict even expression that is frivolous, petty, or pornographic, no matter how unconnected to any public debate, unless the government can show a compelling reason for the restriction or the speech fits into one of a small number of categories of speech that have been regulated historically (such as fraud, perjury, or obscenity). Public employees, however, do not have any protection for speech unless they can show it relates to an issue of public concern, a much higher standard than that applicable to the public at large.

The distinction between employee and citizen speech is why the police officer who starred in a pornographic video while in uniform could not be prosecuted criminally, but could be fired from his public job (San Diego v. Roe, 2004).

Meeting these threshold conditions—speech is not part of one’s job duties, employee is not a policymaking or confidential employee, and speech is on a matter of public concern—is only enough to get the employee to a balancing test between the government’s interest as employer and the employee’s right to speak. In weighing this balance, courts have identified a number of considerations that are “relevant,” but failed to assign concrete weight to the degree of influence they have on the outcome. This failure is by design: as the Supreme Court put it, “Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either appropriate or feasible to lay down a general standard against which all such statements may be judged” (Connick v. Myers, 1983, p. 154). By failing to lay down a bright-line rule, the balancing test requires a fact-specific weighing of competing interests, and the Court expressly left for lower courts to decide how different interests should be weighed in each new different factual situation. The balancing test gives lower courts considerable flexibility in assessing each new situation, but leaves both employer and employee with a measure of unpredictability in how a court might weigh their respective interests and, as a result, whether the Constitution was violated.

Underpinnings of Public Employee Speech Rights

“What is it about the government’s role as employer that gives it a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large?” (Waters v. Churchill, 1994, p. 671). It is hard to overstate how different the tests are for gauging the First Amendment rights of employees versus private citizens. Outside of the public employment context, preserving “efficiency” or “harmony” is not a legitimate basis on which the government can regulate speech (McCullen v. Coakley, 2014, p. 2540). After all, the entire purpose of the First Amendment is to foster debate, and allowing the government to censor speech because of hostile reaction would gut the core of the First Amendment’s values (Barnum, 1981). Similarly, while private citizens are free to support political campaigns or even run for office themselves, public employees are constrained by free speech restrictions on political activity.

Yet, in the workplace, the practical reality that close working relationships between government workers and their co-workers, supervisors, or community contacts are often needed to carry out government programs justifies a good deal more deference to the employer in its restrictions on speech related to the office. Furthermore, as Justice O’Connor wrote, “When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her” (Waters v. Churchill, 1994). Even so, public employees retain some free speech rights to speak out, and this section explores the basis for those rights.

The Employee as Citizen

The United States Constitution highly values the rights of its residents to express themselves, and protects speech even when it is false, hateful, or disgusting (Snyder v. Phelps, 2011; United States v. Alvarez, 2012; United States v. Stevens, 2010). The idea that the citizen retains some rights of citizenship, even after entering government service, has been a recurring theme over the past 50 years. As the view of public employment shifted from the spoils system to the “Public Service Model” (Rosenbloom, 2014), the idea that an employee could function simultaneously as employee and citizen became the dominant perspective. Statutory mandates for hiring employees based on merit, instead of politics, became commonplace. And, as noted, the Supreme Court even concluded that it would be unconstitutional to base many state and local hiring decisions on the political views of the job candidate (Elrod v. Burns, 1976).

In recent years, the distinction between the employee and the citizen has become sharper. In Garcetti v. Cebellos (2006), the Supreme Court ruled that there is no First Amendment claim that can be brought when an employee is disciplined for speech conducted as part of the employee’s official job duties. Other cases have suggested the converse might also be true: speech conducted outside of work, and unrelated to work, is not subject to a balancing test at all but is instead entitled to the full protections of citizen speech. Papandrea (2012) points out the academic argument that “the Connick/Pickering framework does not apply at all in off-duty, non-work-related cases, although to date no lower courts have embraced this approach” (p. 1616). Under this view, there are actually three lines of cases: one for speech conducted pursuant to official responsibilities (Garcetti), another for unrelated speech (“Anti-Garcetti”), and then the hybrid balancing test for speech in the middle (Pickering). Thus, as much as Garcetti makes speech pursuant to official job duties categorically exempt from First Amendment protection, speech that is made off-campus and unrelated to work (i.e., not about workers, students, or supervisors, or the subject matter of employment) is made as a private citizen, and the Government must demonstrate a compelling interest for regulating it. In this construct, the speech in question is purely that of a private citizen who happens to be a public employee—quite a different matter from the usual Pickering case. Although logically tidy, it is not clear whether it will be adopted by the courts. Moreover, defining when speech is related to one’s job is not always straightforward and requires a significant amount of judgment about the nature of one’s duties. Nevertheless, this rationale reveals itself in some of the ways in which the Pickering balancing test is being applied (e.g., the government’s greater burden to justify punishment of speech that is less related to employment), and highlights the idea that a kernel of citizenship remains for the public employee.

Worries About Personal Agenda of Supervisor

Judicial protection of remnants of employee citizenship are not the only drivers of the Pickering balancing test. There is also concern about government using employment as justification to unduly silence its critics or otherwise stifle speech: “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech” (Rankin v. McPherson, 1987, p. 384). This worry is particularly acute when an employee shares information with the public that criticizes particular individuals in office, or when the employee takes a public position on a matter that differs from a supervisor’s stance. Retaliation against the employee here is not so much a reflection of the interests of the government as an entity but the interests of the supervisor as a person. The potential for higher level government officials to be less-than-faithful agents of the power in which they have been vested justifies judicial scrutiny of the personnel decision to ensure valid governmental interests are being served with the discipline (Rosenbloom, 2014). As one recent decision put it, “Although it could be true that police departments would operate more efficiently absent inquiry into their practices by the public and the legislature, efficiency grounded in the avoidance of accountability is not, in a democracy, a supervening value” (Moonin v. Tice, 2017, p. 866).

Harm to Public Debate

The public at large also has an interest in the speech of public employees (Azzaro v. Cnty. of Allegheny, 1997). Inhibiting access to the marketplace of ideas for public sector employees could be quite damaging to the representation of all viewpoints:

Federal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas. They include literary giants like Nathaniel Hawthorne and Herman Melville, who were employed by the Customs Service; Walt Whitman, who worked for the Departments of Justice and Interior; and Bret Harte, an employee of the Mint. (United States v. National Treasury Employees Union, 1995, pp. 464-465)

This is particularly true when public sector employees have special information or insight. For example, with their intimate knowledge of inside operations, public employees are often best suited to expose corruption (Brewer & Selden, 1998). And, “Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions” (Waters v. Churchill, 1994, p. 674). Furthermore, the mere perspectives of certain groups of public sector employees may go underrepresented if cabined from debate. Law enforcement officers and teachers, for example, can have special wisdom about law enforcement and public education.

As is true of free speech jurisprudence in general, the desire to encourage public servants to participate in public debate means that the rules of protection must be broad to prevent self-censorship (Connick v. Myers, 1983). The unpredictability of who might react, how the employer will perceive the threat of disruption, and how a court will balance speech versus employer interests will cause many potential speakers to avoid public commentary on anything potentially controversial, or even minimize public speech altogether.

Survey of Federal Appellate Decisions

To better understand trends in how the courts are analyzing free speech claims by public employees, we reviewed recent federal court of appeals opinions that dealt with a public employee speech claim. Published decisions by federal appellate courts are binding on all courts throughout their geographic scope, and these decisions are subject to review only by the Supreme Court, which is very rare.

Using the advanced search function on Westlaw, we searched for all opinions that contained the word “Pickering” and either the phrase “Free speech” or “First amendment” (or both), that were decided in 2016 or 2017. We searched Westlaw’s “Federal Courts of Appeals” database, which contains all published and unpublished opinions issued by the federal appellate courts. This search identified 78 cases, 15 of which were not brought by public employees and were excluded from the analysis. See appendix for a brief description of all cases. In addition to the sampled cases, other illustrative cases outside of the sample are included.

As seen in Table 1, the government-employer won 70% of the appeals (44/63). The most common occupation for bringing a speech claim was law enforcement. Most of the cases were resolved on grounds other than the application of the balancing test. For example, employees lost after failing to establish that their speech was on a matter of public concern (9 cases), that it was made in their capacity as a private citizen (9 cases), or that the adverse action that they experienced was not causally related to their speech (7 cases). As shown in Table 2, Among the sampled cases, complaints regarding workplace conditions (22) or perceived misconduct (12) were the most frequent types of offending speech, followed by commentary on public policy (9) or political activities, such as endorsing or refusing to endorse candidates for local public office (6).

Table 1.

Descriptive Statistics of Cases.

	n =
Government prevailed	44
Employee prevailed	19
Job type:
Law enforcement	25
Attorneys	3
Firefighters/ Emergency Medical Technicians (EMT)	6
Professors	3
Teachers	4
Court officials	3
Other	19
Reason for government victory:
No adverse action	2
No causation between speech and action	7
Employee made speech as part of job	9
Pickering balancing test	11
Speech not on public concern	9
Employee was policymaking official	2
Other	4

Table 2.

Outcome of Appellate Decisions and Nature of Employee Speech.

Type of employee speech	Government prevailed	Employee prevailed
Complaining about misconduct	7	5
Public policy opinion	6	3
Workplace conditions	16	6
Political activities	3	3
Earlier employment grievance	2	0
Holding outside position	1	1
Hate speech	3	0
Other	6	1
Total	44	19

Speech Pursuant to Official Duties

Speech conducted pursuant to one’s official job responsibilities falls outside the First Amendment altogether (Garcetti v. Ceballos, 2006). However, just because speech is conducted at work or is related to one’s job does not automatically take it outside First Amendment protection (Rankin v. McPherson, 1987).

Because many public employees have a duty to report misconduct as part of their job responsibilities, it can often be difficult to determine whether a challenge to misconduct is outside one’s job duties, and therefore constitutionally protected. To make this determination, courts considered whether the complaint was made outside of the chain of command (Mansfield v. Pfaff, 2017; Scrip v. Seneca, 2016). Similarly, going public or to the media with damaging information was also a way that an employee might demonstrate they were speaking outside of their job responsibilities (Lane v. Anderson, 2016). As one court put it, the employee “communicated her concerns to members of the public and contacted local leaders to push for reform, just as a private citizen exercising her First Amendment rights would do” (Ricciuti v. Gyzenis, 2016, p. 169).

The more that an employee departs from usual reporting procedures or the chain of command, the more likely that the employee was engaging in constitutionally protected speech. Paradoxically, this means that an employee must use more disruptive channels to challenge misconduct, which makes the employee less likely to prevail under the balancing test (Roberts, 2015).

Speech on a Matter of Public Concern

Another recurring issue for courts is deciding whether the speech that led to discipline was on a matter of public concern. A fifth of the cases where the government prevailed (9/44) in our sample were based on a finding that the speech was not on a matter of public concern, and so it fell outside of constitutional protection. Several courts articulate a “workplace grievance” rule where disputes with a supervisor or complaints about workplace conditions can be punished without constitutional issue (Cvancara v. Reams, 2017). Yet, this is often highly fact specific, and courts reached different outcomes in similar cases. For example, one decision concluded that union activity was unprotected, whereas another found that it was on a matter of public concern (Candelaria v. City of Tolleson, Arizona, 2017; Schleig v. Borough of Nazareth, 2017). These disagreements persist despite the Supreme Court’s ruling in Harris v. Quinn (2015), which recognized that union activity is speech on a matter of public concern, at least when at the bargaining stage.

Pickering Balance

An employee whose speech was made as a private citizen and is on a matter of public concern can be constitutionally free from discipline only if the employee’s interest in speech exceeds that of the government’s interest in silencing the speech. This is a highly indeterminate balancing test, but courts use different guideposts to help decide how to weigh the competing considerations.

How relevant is the speech to public debate?

Another factor that courts consider when weighing the government’s interest in censoring an employee is how strongly the speech is related to matters of public concern. The government must make “a stronger showing . . . if the employee’s speech more substantially involved matters of public concern” (Connick v. Myers, 1983). Unlike the binary public concern threshold test, this conceives of public concern as a spectrum, with gradations between higher and lower levels of public concernness. For example, in a case where an employee posted a crude joke to Facebook to comment about gun control, and then later ranted about his department’s social media policy, the court begrudgingly decided that the speech was on a matter of public concern, but nevertheless found that the employee’s interest in it was readily surpassed by the risk to the employer’s operations (Grutzmacher v. Howard County, 2017).

How relevant is the speech to the speaker’s job?

Courts also consider how “related” the questionable speech is to the workplace—both in terms of content and how it is conducted. “Speech and conduct that occur outside the office walls and that do not relate to work interfere less with office efficiency than conduct that occurs inside the office or that relates to the employee’s work” (Scarbrough v. Morgan County Board of Education, 2006, pp. 257-258). Thus, the government is less interested in employee speech conducted outside of the office and during personal time, than speech that takes place during the work day. However, even speech that takes place at work has some protection (Rankin v. McPherson, 1987). Moreover, speech on topics that have little to do with the employee’s job—say, a public school teacher’s commentary on gun control—is further removed from the scope of employment, and thus is presumptively beyond the government’s reach to control.

Relatedness, however, can become an infinitely elastic concept. If a student believes they can’t safely disagree with a teacher’s stance on gun control, or if the school contends that a particular view on gun control is inconsistent with the school’s own gun policy, a school might argue that the teacher’s speech about gun control is in fact related to their job. For example, employees in a fire department were removed from their position after being critical of calls for gun control (Grutzmacher v. Howard County, 2017). There was no indication that the individuals carried firearms as part of their job responsibilities, but the court still found the post implied a threat of violence which “frustrated the Department’s public safety mission and threatened ‘community trust’” (Grutzmacher v. Howard County, 2017).

What is the speaker’s job?

Courts also assign weight to the type of position held by the employee. In Rankin, the Supreme Court suggested that employees in policymaking positions have considerably less expressive rights than those who are closer to the street-level bureaucrat (Rankin v. McPherson, 1987). Thus, for example, the director of human resources at a public university was a high-level, policymaking employee who had no First Amendment protections from her employer (Dixon v. University of Toledo, 2012). For certain types of positions, the Supreme Court implicitly reasons, the balance between employer and employee interests will always tilt in favor of the employer. This is true when, for example, the position is akin to a political appointment (such that political opinions could properly part of the employment criteria), or when the position involves a close-working relationship between the speaking employee as a trusted advisor and the agency’s leadership (perhaps chief of staff or primary policy advisor of a department head).

By distinguishing between mutually exclusive categories of “policymaking” employees and street-level bureaucrats, the Court adopts a bifurcated view of public decision-making. In this view, government policymaking is conducted solely by high-level officials, who then leave implementation to automatons with minimal say over the direction of policy. The government’s interests in an efficient workplace give it great latitude to control the extramural speech and political views of high-level “policymaking” employees to ensure that the architects of policy are faithful to the government’s aims. Speech of employees lower in the hierarchy, in contrast, is assumed not to be disruptive absent actual evidence that it interfered with a government objective.

A few courts have looked not only to the position within an organization, but also the field of employment. For example, several appellate decisions have crafted special rules for speech conducted by police officers, reasoning that the need “for maintaining a close working relationship in quasi-military organizations like police departments” gives the employer wider latitude to discipline speech of police officers (Busby v. City of Orlando, 1991, p. 774). Thus, because “[d]iscipline and esprit de corps are vital to [police department’s] functioning,” court has held controversial officer speech is more likely to be disruptive enough to warrant punishment than similar speech in other profession (Cochran v. City of Los Angeles, 2000, p. 1201). Several of the cases in the sample, for example, emphasized that the employee was a member of the police force (Grutzmacher v. Howard County, 2017). Indeed, of the cases in the sample where an employee lost at the Pickering balance stage, almost all of the employees were in law enforcement.

Cost of judicial intrusion into management decisions

Courts also consider the consequence of interfering with a public entity’s management over its employees (Rosenbloom, 2014). This concern is particularly acute in certain contexts. For example, one decision credited the employer’s interest in jail security when declining to overturn its punishment of jailers who complained about a new workplace rule (Gillis v. Miller, 2017).

Content is not a criterion

There is no blanket offensiveness or “hate speech” exception to the free speech rights of public employees. Indeed, the substance of an employee’s speech is relevant only in limited ways (i.e., Is the speech on a matter of public concern? Is the content of the speech likely to cause disruption to the employer?). The courts have long rejected the idea that there are political opinions—no matter how radical—that automatically disqualify one for the lower ranks of public service (Elrod v. Burns, 1976; Keyishian v. Board of Regents of University of State of New York, 1967). Thus, an employer seeking to discipline an employee for that employee’s speech may not argue that the speech was false, wrong-headed, absurd, or objectively offensive; only the actual disruption of the employer’s operations matters in the balancing test.

Different Perspectives on Relevance of Community Outrage

Most government employee free speech challenges involve speech that an employee made criticizing the supervisor or the employer. However, in many recent incidents, public employees made a statement that upset some external constituency, but not necessarily co-workers or supervisors. External complaints about the employee’s speech put the public employer in a precarious position, as the law is unsettled. Three approaches illustrate how Pickering’s balancing test might incorporate or reject community outrage.

Approach 1: Narrow View of Relevant Interests

The Sixth Circuit adopted an employee-friendly policy, flatly restricting governments from considering disruption that stemmed from disagreement with speech’s content. In a pair of decisions reviewing decisions of Ohio’s municipalities, the Sixth Circuit held that it was not proper for the government to discipline an employee simply because community members were outraged and threatened to boycott the government unit. In one instance, an instructor at a community college used racial and other slurs in class as part of a learning exercise; a community leader promised that African American students would decline to enroll as a result. In another, a police officer made statements about affirmative action that members of the community found offensive, arguing that this would strain relations between the police department and the community it serves. The Court of Appeals rejected the government’s claim that discipline was appropriate in either case (Hardy v. Jefferson Cmty. Coll., 2001; Meyers v. City of Cincinnati, 1991). For example, in the police officer case, the Court explained as follows: “The evidence is straightforward: Daisy Foster, Lucy Green, and thereafter David Rager did not like what they understood plaintiff to say. That falls well short of a showing of a legitimate interest which would allow the city to limit plaintiff’s First Amendment rights in free speech on a controversial political issue” (Meyers v. City of Cincinnati, 1991, p. 730). In other cases, the same court confirmed that discipline is not allowed simply because the government received “criticism from the community related to the alleged speech,” (Evans-Marshall v. Board of Education of Tipp City Exempted Village Sch. District, 2005, p. 231), and “that large segments of the community disagreed with [an employee’s speech—her class assignments and teaching methods—is beside the point” (Evans-Marshall v. Board of Education of Tipp City Exempted Village Sch. District, 2010, p. 339). In the Sixth Circuit’s view, disagreement was triggered by the content of speech, and that wasn’t sufficient to penalize the employee’s commentary.

Approach 2: Intermediate View, Includes Indirect Consumers

The Second Circuit went in a much different direction. A public school teacher lost his job after the community discovered that he was a member of the North American Man/Boy Love Association. The teacher’s involvement with the organization was exclusively expressive—he was not accused of any illegal behavior (Melzer v. Board of Education of City School District of City of New York, 2003). Yet, the Second Circuit found that the parents’ discomfort at the teacher’s position outweighed the teacher’s interest in speech (Melzer v. Board of Education of City School District of City of New York, 2003, p. 198). “Parents so concerned may remove their children from the school, thereby interrupting the children’s education, impairing the school’s reputation, and impairing educationally desirable interdependency and cooperation among parents, teachers, and administrators” (Melzer v. Board of Education of City School District of City of New York, 2003, p. 198). The Court continued as follows:

Melzer’s position as a teacher leaves him somewhat beholden to the views of parents in the community. Parents are not outsiders seeking to heckle Melzer into silence, rather they are participants in public education, without whose cooperation public education as a practical matter cannot function. Any disruption created by parents can be fairly characterized as internal disruption to the operation of the school, a factor which may be accounted for in the balancing test and which may outweigh a public employee’s rights. In consequence, we do not perceive an impermissible heckler’s veto implicated in this case. (Melzer v. Board of Education of City School District of City of New York, 2003, pp. 198-199)

Approach 3: Broad View, includes Community

Like the Second Circuit, the Eleventh Circuit also upheld the discharge of an employee for his membership in an organization. An employee of the local sheriff’s office by day, by night Mr. McMullen was a recruiter for the Ku Klux Klan. He was promptly discharged after he held a televised press conference where he identified his employer, took credit for a recent act of race-based vandalism, and then sought to recruit individuals for membership in the Ku Klux Klan. His termination was upheld by the court, finding that there was significant evidence of both internal strife and a decisive lack of confidence in the Sheriff’s Office by hundreds in the community, especially among African Americans. Although the court was careful to note that “reaction of a community cannot always dictate constitutional protections,” it found that the “understandably adverse” reaction by many in the community so threatened the ability of the agency to perform its mission that termination was required (McMullen v. Carson, 1985, p. 940). In making this conclusion, the court heavily emphasized the “qualitatively different” character of free speech protections in law enforcement agencies, suggesting that a different result might have been required in another office. In a recent decision, again responding to a racist law enforcement officer, the court went even further, holding that even if the employer “did not receive any complaints or demands that he be fired and that no rallies or protests were actually held,” the employer “needed to demonstrate only a reasonable possibility that such disruptions would occur” to justify the termination (Snipes v. Volusia County, 2017, p. 853).

Summary

These three approaches highlight different ways that community reaction is incorporated into the government’s side of the Pickering balancing test. One extreme excludes community reaction altogether, focusing narrowly on internal dynamics within an agency. Other approaches consider community stakeholder input as part of the government’s interest, although the relevant stakeholders can be considered more or less broadly depending on the court and context (Foote & Clinger, 2018).

Although every case turns on its own facts (and the judges’ weighing of those facts), the number of people outraged is relevant as well. When the concern is voiced by individuals who are co-workers of the speaker, the possibility for job disruption is at its highest. Similarly, when someone from the community voices concern, who is and will continue to be a direct customer, and interacts with the employee regularly—say, a parent or a student with a teacher—disruption is also a possibility. The taxpayers or the citizenry of a community pose considerably less risk of an immediate and direct disruption as other types. An individual co-worker who is unable to work with another employee may completely disrupt the effective performance of an office. However, one individual parent who is angry at a teacher in a class of 30 students is less disruptive, especially if other options for a teacher for the student exist. Less disruptive still is 30 taxpayers expressing anger at a teacher in a community of a thousand. As one court noted, fielding complaints is part of the usual operation at many government offices; the mere fact that some complaints are about an employee’s speech does not amount to the substantial disruption that would justify discipline (Devlin v. Kalm, 2015).

Yet, the line between internal and external disruption—or between co-workers versus customers versus citizens—is an artificial distinction that relies on how courts construct and value certain interests of government. A citizenry that loses trust in its police force due to officer comments revealing a race bias, for example, can significantly interfere with the government’s public safety objective, much as a parent’s severe distrust of a teacher harms the objective in education. Yet, courts are more likely to recognize and validate the concerns of a parent over a resident, which reflects a judicial view that parents’ cooperation is more vital to the government.

Conclusion and Implications for Practice

Although the federal appellate courts reject most First Amendment challenges brought by aggrieved public employees, the paths taken and modes of analysis differ. This piece sheds additional light on routes that precedent-setting courts follow when evaluating a speech claim. The state of the law provides several lessons for public administrators and employees.

To begin, employees can bargain for protections beyond that provided by the First Amendment. This is the approach that public university faculty and certain other unionized professions have pursued. Furthermore, government can provide protection for employee speech beyond that required by the First Amendment. Statutory whistleblower laws, for example, provide protections against retaliation that are unprotected by the First Amendment (Roberts, 2015).

Second, social media or speech policies can provide some guidance to employees and those who make employment decisions, although the utility of such policies is very limited. A policy might provide presumptive protection for employee speech on certain issues or done in a certain way (say, off work premises on personal social media), or it might warn against commentary on certain issues. Although helpful for providing guidance to employees, these policies often end up being vague to the point of being unhelpful, or overly restrictive of speech. Moreover, the Supreme Court has expressly stated its disfavor for up-front rules, preferring instead an assessment of the disruption that occurs after in a particular speech (United States v. National Treasury Employees Union, 1995).

Another path toward resolving the tensions around employee speech is by designing and following clear, thoughtful processes for imposing discipline. Courts reviewing claims of retaliatory discipline for exercise of free speech rights should impose a burden on the employer to establish that the discipline is in fact in the interests of the government and not simply a particular supervisor. This can be done by considering the nature of the process that led to the discipline, by requiring that claims of anticipatory disruption be factually supported with objective evidence beyond the unsubstantiated fears of an official, and by establishing specific (though reasonable) policies on outside speech that articulate ex ante the expectations of government.

When it comes to a public employee’s speech, there is little certainty for either the employer or the employee. As long as the courts use a balancing test, each decision will be highly fact-specific depending on factors such as the nature of the speech, where it took place, the nature of the employee’s position, and many others.

Supplemental Material

Appendix – Supplemental material for Public Employee Speech Rights: Survey of Recent Trends

Supplemental material, Appendix for Public Employee Speech Rights: Survey of Recent Trends by Joseph Mead in Review of Public Personnel Administration

Footnotes

Appendix

Case name	Action being challenged	Who prevailed	Basis for court’s analysis	Employee’s job	Employee’s speech
Lynch v. Ackley, 811 F.3d 569, 574 (C.A.2 [Conn.], 2016)	Minor discipline	Govt.	Adverse action	Police officer	Speaking out on union complaints
Lawson v. Union County Clerk of Court, 828 F.3d 239, 247 (C.A.4 [S.C.], 2016)	Removed	Plaintiff	Elrod and Pickering	Court officer	Political endorsement
Borzilleri v. Mosby, 874 F.3d 187 (C.A.4 [Md.], 2017)	Removed	Govt.	Elrod	Asst prosecutor	Political endorsement
Liverman v. City of Petersburg, 844 F.3d 400, 404 (C.A.4 [Va.], 2016)	Probation / denied promotion	Plaintiff	Pickering	Police officer	Comment on trainer credentials
Gillis v. Miller, 845 F.3d 677 (C.A.6 [Mich.], 2017)	Removed	Govt.	Pickering	Jail guards	Informing coworkers of union rights
Helget v. City of Hays, Kansas, 844 F.3d 1216 (C.A.10 [Kan.], 2017)	Removed	Govt.	Pickering	Police secretary	Filing affidavit with supposed confidential info in another case
Grutzmacher v. Howard County, 851 F.3d 332 (C.A.4 [Md.], 2017)	Removed	Govt.	Public concern and Pickering	Paramedic	Commentary on gun control
Anderson v. Valdez, 845 F.3d 580 (C.A.5 [Tex.], 2016)	Not hired	Plaintiff	Garcetti and Pickering	Law clerk	Complained of misconduct by prior judge
Crouse v. Town of Moncks Corner, 848 F.3d 576, 580 (C.A.4 [S.C.], 2017)	Removed	Govt.	Garcetti	Police officers	Interview a witness
Hagan v. Quinn, 867 F.3d 816, 819 (C.A.7 [Ill.], 2017)	Removed	Govt.	Policymaker	Arbitrators	Challenged a state law in court
Ricciuti v. Gyzenis, 834 F.3d 162 (C.A.2, 2016)	Removed	Plaintiff	Garcetti and Pickering balance	Police officer	Criticized overtime policy in public
Denton v. Yancey, 661 Fed. Appx. 933, 937 (C.A.10 [Okla.], 2016)	Released video	Govt.	Public concern	Police officer	Arbitration testimony
Kennedy v. Bremerton School District, 869 F.3d 813, 821 (C.A.9 [Wash.], 2017)	Leave	Govt.	Other	Coach	Led team in prayer while on the job
Godwin v. Rogue Valley Youth Correctional Facility, 656 Fed. Appx. 874 (C.A.9 [Or.], 2016)	Removed	Plaintiff	Pickering	Jail guards	Association with motorcycle gang
Moonin v. Tice, 868 F.3d 853, 859 (C.A.9 [Nev.], 2017)	Policy	Plaintiff	Pickering	Police officer	Discussion of k9 program
LeFande v. District of Columbia, 841 F.3d 485, 488 (C.A.D.C., 2016)	Removed	Govt.	Pickering	Police officer	Criticism of supervisors/insubordination
Jackson v. Besecker, 700 Fed. Appx. 792 (C.A.10 [Colo.], 2017)	Removed	Plaintiff	Jurisdiction	Police officer	Running for office
Naghtin v. Montague Fire District Board, 674 Fed. Appx. 475, 476 (C.A.6 [Mich.], 2016)	Removed	Govt.	Public concern	Firefighter	Petition for reinstatement
Lyons v. Vaught, 875 F.3d 1168, 1170 (C.A.8 [Mo.], 2017)	Removed	Govt.	Garcetti / qualified immunity	Lecturer	Criticizing treatment of student athletes
Utter v. Colclazier, 714 Fed. Appx. 872 (C.A.10 [Okla.], 2017)	Removed	Plaintiff	Causation	Teacher	Supporting bond issue
De Ritis v. McGarrigle, 861 F.3d 444, 449 (C.A.3 [Pa.], 2017)	Removed	Govt.	Garcetti and Pickering	Public defender	Rumor about demotions, recklessly false
Ellison v. Roosevelt County Board of County Commissioners, 700 Fed. Appx. 823 (C.A.10 [N.M.], 2017)	Removed	Govt.	Garcetti	police officer	complain of misconduct
Poff v. Oklahoma ex rel. Oklahoma Department of Mental Health and Substance Abuse Services, 683 Fed. Appx. 691, 695 (C.A.10 [Okla.], 2017)	Removed	Govt.	Garcetti	Investigator	Complain of misconduct
Lumpkin v. Aransas County, Texas, 712 Fed. Appx. 350 (C.A.5 [Tex.], 2017)	Removed	Govt.	Public concern	Paralegal	Complaints about supervisor
Cvancara v. Reams, 676 Fed. Appx. 774, 775 (C.A.10 [Colo.], 2017)	Removed	Govt.	Public concern	Victim’s advocate	Complaints about workplace conditions
Kristofek v. Village of Orland Hills, 832 F.3d 785, 790 (C.A.7 [Ill.], 2016)	Removed	Plaintiff	Garcetti and Pickering	Police officer	Reported official misconduct
Supinger v. Holcomb, 717 Fed. Appx. 194, 196 (C.A.4 [Va.], 2017)	Removed	Plaintiff	Public concern and Pickering	Investigator	Department of Motor Vehicles (DMV) reorganization
Eves v. LePage, 842 F.3d 133, 135 (C.A.1 [Me.], 2016)	Interfered with being hired in private job	Govt.	Adverse action	Nonprofit exec	Disagreeing with govt.
Medici v. City of Chicago, 856 F.3d 530, 532 (C.A.7 [Ill.], 2017)	Policy	Govt.	Jurisdiction	Police officer	Visible tattoo
Wolfson v. Concannon, 811 F.3d 1176, 1179 (C.A.9 [Ariz.], 2016)	Policy	Govt.	Pickering	Judge candidate	Solicitation of donations
Zehner v. Jordan–Elbridge Board of Education, 666 Fed. Appx. 29, 31 (C.A.2 [N.Y.], 2016)	Suspended	Plaintiff	Causation	Teacher	Criticized board for violating open meetings law
Candelaria v. City of Tolleson, Arizona, 721 Fed. Appx. 588, 589 (C.A.9 [Ariz.], 2017)	Discipline	Govt.	Public concern and causation	Firefighter	Union activities
Schleig v. Borough of Nazareth, 695 Fed. Appx. 26 (C.A.3 [Pa.], 2017)	Threats by chief	Plaintiff	Adverse action	Police officer	Union activities
Lane v. Anderson, 660 Fed. Appx. 185, 187 (C.A.4 [Md.], 2016)	Removed	Plaintiff	Public concern and Pickering	Police officer	Alleged cover-up of shooting
Mansfield v. Pfaff, 719 Fed. Appx. 583, 585 (C.A.9 [Wash.], 2017)	Removed	Govt.	Garcetti and causation	Researcher	Accused subordinate of assault
Williams v. McKee, 655 Fed. Appx. 677 (C.A.10 [Colo.], 2016)	Removed	Govt.	Pickering	Jailer	Political bumper sticker on personal vehicle
Wetherbe v. Texas Tech University System, 699 Fed. Appx. 297 (C.A.5 [Tex.], 2017)	Promotion	Plaintiff	Public concern	Professor	Criticizing tenure
Klosowski v. City of Bay City, 696 Fed. Appx. 707, 708 (C.A.6 [Mich.], 2017)	Removed	Plaintiff	Public concern and Pickering	Bridge tender	Complained waste of money to keep bridge open
McGunigle v. City of Quincy, 835 F.3d 192, 195 (C.A.1 [Mass.], 2016)	Workplace conditions	Govt.	Causation	Police officer	Complaint about enforcement of dog ordinance
Flanagan v. City of Richmond, 692 Fed. Appx. 490, 491 (C.A.9 [Cal.], 2017)	Removed	Govt.	Pickering	Police officer	Anti-gay speech
Thompson v. Shock, 852 F.3d 786, 789 (C.A.8 [Ark.], 2017)	Removed	Plaintiff	Pickering	Police officer	Didn’t support sheriff candidacy
Carollo v. Boria, 833 F.3d 1322, 1325 (C.A.11 [Fla.], 2016)	Removed	Plaintiff	Garcetti	City manager	Reports violation of campaign laws
Loftus v. Bobzien, 848 F.3d 278, 281 (C.A.4 [Va.], 2017)	Removed	Govt.	Pickering	Attorney	Elected to conflicting office
Brickey v. Hall, 828 F.3d 298, 300 (C.A.4 [Va.], 2016)	Removed	Govt.	Pickering	Police officer	Critical of department when running for office
Ledford v. Idaho Department of Juvenile Corrections, 658 Fed. Appx. 312 (C.A.9 [Idaho], 2016)	Removed	Govt.	Garcetti	Jailers	Reporting corruption
Mayhew v. Town of Smyrna, Tennessee, 856 F.3d 456, 459 (C.A.6 [Tenn.], 2017)	Removed	Plaintiff	Garcetti and public concern	Lab supervisor at wastewater treatment plant	Reported misconduct (lost) and complained about hiring practices (won)
Tompos v. City of Taylor, 644 Fed. Appx. 678, 679 (C.A.6 [Mich.], 2016)	Removed	Govt.	Policymaking	Fire chief	Criticize budget cuts
Snipes v. Volusia County, 704 Fed. Appx. 848, 849 (C.A.11 [Fla.], 2017)	Removed	Govt.	Pickering	Police officer	Racist Facebook post
Odermatt v. New York City Department of Education, 694 Fed. Appx. 842, 844 (C.A.2 [N.Y.], 2017)	Removed	Govt.	Public concern	Student worker	Criticized school
Heller v. Bedford Central School District, 665 Fed. Appx. 49 (C.A.2 [N.Y.], 2016)	Removed	Govt.	Pickering	Teacher	Stated wanted to kill people
Ely v. Dearborn Heights School District No. 7, 655 Fed. Appx. 495 (C.A.6 [Mich.], 2016)	Discipline	Plaintiff	Pickering	School custodian	Complaint about asbestos in school to colleague
Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 236 (C.A.3 [N.J.], 2016)	Discipline	Govt.	Garcetti	Police officer	Object on official forms to a perceived quota system
Scrip v. Seneca, 651 Fed. Appx. 107, 108 (C.A.3 [Pa.], 2016)	Removed	Govt.	Causation	Probation officer	Complained within chain of command about an inappropriate relationship
Boudreaux v. McArtor, 681 Fed. Appx. 800 (C.A.11 [Fla.], 2017)	Removed	Govt.	Causation	Firefighter	Mother filed ethics complaint about supervisor
Weinstein v. University of Connecticut, 676 Fed. Appx. 42, 43 (C.A.2 [Conn.], 2017)	Removed	Govt.	Causation	Professor	Complaint of nepotism
Howard v. City of Coos Bay, 871 F.3d 1032, 1037 (C.A.9 [Or.], 2017)	Failed to hire	Govt.	Causation	Finance director	Filing an earlier retaliation suit
Bagi v. City of Parma, Ohio, 714 Fed. Appx. 480, 482 (C.A.6 [Ohio], 2017)	Discipline	Govt.	Public concern	Firefighters	Complaints about fairness of test
VanDeWalle v. Leon County Fla., 661 Fed. Appx. 581 (C.A.11 [Fla.], 2016)	Removed	Govt.	Causation	Animal control officer	Complaints of unfairness to fellow employee
Brown v. Chicago Board of Education, 824 F.3d 713 (C.A.7 [Ill.], 2016)	Suspended	Govt.	Garcetti	Teacher	Used N word
Minnis v. State of Washington, 675 Fed. Appx. 728, 731 (C.A.9 [Wash.], 2017)	Work from home	Govt.	Public concern	Unknown	Workplace grievances
Wolgast v. Tawas Area School District Board of Education, 2017 WL 3,976,702, at *1 (C.A.6 [Mich.], 2017)	Removed	Govt.	Pickering	IT staffer	Workplace grievances
Valdes v. City of Doral, 662 Fed. Appx. 803, 811 (C.A.11 [Fla.], 2016)	Minor discipline	Govt.	Causation	Police officer	Request for investigation
Bolderson v. City of Wentzville, Missouri, 840 F.3d 982 (C.A.8 [Mo.], 2016)	Removed	Govt.	Monell	Building commissioner	Criticized changes to building code

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Author Biography

Joseph Mead is an assistant professor at Cleveland State University in the Maxine Goodman Levin College of Urban Affairs and the Cleveland-Marshall College of Law. He has litigated government employee cases on behalf of the federal government and the ACLU.

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