Federal employees who have challenged adverse job actions on First Amendment grounds regularly fail. Why is that, and could a case now pending before the U.S. Supreme Court be a game-changer?
Thirty years ago, the Supreme Court recognized that public employees, like all citizens, enjoy a constitutionally protected interest in freedom of speech. However, according to the court, public employee free speech rights must be balanced against the need of government agencies to exercise “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”
For employees who faced a job action because of something they said, the Merit Systems Protection Board applied Supreme Court First Amendment law to determine whether a public employee’s speech is protected by the First Amendment. That test has always been to balance the interests of the employee, acting as a private citizen, in commenting on matters of public concern, against the interests of the federal government, as an employer, in promoting the efficiency of the public services it performs through its employees. Thus, the MSPB will determine: 1) whether the speech was made as a private citizen; 2) whether the speech addressed a matter of public concern, and, if so, 3) whether the agency’s interests in promoting the efficiency of the service outweighs the employee’s interest as a citizen.
In sum, speech (in a blog, on your Twitter account, on your Facebook page, in an op-ed), is protected by the First Amendment, and thus cannot be the subject of discipline if you were speaking as a private citizen (not in your official capacity) and on a matter of public concern. When you speak out with the indicia of your official capacity on a matter of public concern, your speech can be regulated by your federal employer, including discipline. The rationale is found in the Supreme Court case, Garcetti v. Ceballos, 547 U.S. 410 (2006):
“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…Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”
A few weeks ago, the Supreme Court heard arguments on a public employee case that raises questions about whether some speech made in your official capacity is protected. The case was brought be a Central Alabama Community College (“CACC”) employee who became the director of a program for at-risk youth. He discovered that an Alabama state representative was on the program’s payroll, despite never having provided any work or services for the program. When the employee notified the CACC president about his concerns, he was warned by the president and CACC’s attorney that putting an end to the state representative’s “employment” would not be wise for either CACC, or for the employee. The employee ignored this warning and terminated the Alabama state representative when she refused to report to work.
The employee, while still employed, was later subpoenaed for his testimony in two federal criminal trials for mail fraud and fraud involving a program receiving public funds. The employee testified that the state representative had not reported to work, had not submitted time sheets, and had refused to report to work when instructed to do so.
Subsequently, the CACC president of the CACC fired the employee who terminated the state representative. The employee then filed suit in federal district court, claiming that his firing was retaliation for his testimony regarding the state representative. The court of appeals ruled for the public employer, finding that an employee does not enjoy First Amendment protection when the speech was made pursuant to his official duties, i.e., his subpoenaed testimony.
The issue before the Supreme Court was whether a public employer is categorically liberated under the First Amendment to retaliate against an employee for truthful testimony that was compelled by subpoena. The fact that his testimony was presumably truthful has thus far offered him no relief.
Most federal employees who defended against an adverse action alleging a violation of the First Amendment lost because the speech at issue, made as a private citizen, did not involve a public concern. The MSPB has long held that employee speech that lacks a public dimension and is seen as subversive to good order, efficiency or discipline in the workplace, is more likely to be unprotected speech. But with the case now before the Supreme Court, it looks as if some official capacity speech may become protected under the First Amendment. To what extent, will be revealed when the Court rules by June 30th.
Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federal times.com and view her blog at blogs.federaltimes.com/ federal-law.