Do I have a Right to Free Speech as a Public Employee?

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There is a lot of misunderstanding about protected speech under the First Amendment to the United States’ Constitution. Many people mistakenly assume that the First Amendment applies equally to employees in both the private and public sector. However, that is not the case.

The First Amendment is a right to free speech, freedom of the press, as well as the freedom to exercise religion, assemble, associate with others, and petition the government. However, the protection and freedoms that it ensures are against governmental intrusions on these freedoms, not by private citizens encroaching on these rights. There are other State or Federal laws that may address violations of such rights by fellow citizens, but not the First Amendment.

Is the First Amendment applicable in the work place? The short answer is “yes” (within limits) in government employment; but “no” in the private sector. Again, if you are a public employee (working for the Federal, State or local government, such as a County or City), you possess First Amendment rights, but within limitations.

First, the primary recognized forms of “speech” are: (1) pure speech, (2) speech plus action, and (3) symbolic speech. Pure speech is generally characterized by face-to-face discussions, speeches at public meetings, classroom debates, and most comments stated on television and radio. The second type, “speech plus action” can take the form of marching, singing, picketing, or chanting slogans. The third type of free expression, “symbolic speech,” consists of actions that replace words, such as wearing an armband, a shirt with a slogan, or burning a flag.

In order to be protected speech, the expression must address a “matter of public concern.” To constitute a matter of public concern, the speech must relate to a matter of political, social, or other concern to the community. For instance, if a public servant were to criticize his or her employer’s preparedness for a disaster, or lack thereof, such would be a “matter of public concern.” In fact, the U.S. Supreme Court has held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties. In other words, if a public employee speaks out about something in the workplace that he or she would be expected to report, they are not speaking as a private citizen but in the course of their duties. As such, it would not be protected speech. Conversely, speech that relates to a purely private interest or an isolated workplace complaint, such as reporting being harassed or discriminated against, is usually not considered a matter of public concern, but would be protected by separate anti-discrimination laws.

The free exercise of speech in any form is also not an absolute right as the government may place reasonable restrictions as to the time, place and manner. Public employees who are covered by a collective bargaining agreement are also permitted, pursuant to Chapter 447, Florida Statutes, to engage in speech related to the terms and conditions of employment, within parameters and so long as it does not disrupt the workplace. In other words, even if your speech is a matter of public concern, your interest in expressing yourself is weighed against any disruption or injury that the exercise of the speech could cause to your employer. Courts have found that speech interferes with the government employer’s interests in functioning if it impairs discipline, work relationships, or interferes in the performance of your public service duties. By way of example, the government is allowed to prohibit employees from using offensive speech towards citizens or other co-workers, and employers are generally given authority to respond, and discipline or curtail if necessary, speech in the workplace.

At Wilson McCoy, P.A. we have a great deal of experience is handling cases on behalf of public employees, including analyzing whether free speech protection exists. If you would like to know more about your rights in your particular circumstance as a public sector employee, please contact us today at (407) 803-5400 or info@wilsonmccoylaw.com, for an analysis of your situation and to schedule a consultation.