Federal Courts Reaffirm First Amendment Rights of Public Employees

October 29, 2013 by Dalisai Nisperos & Christopher Hammer

Public sector employees enjoy a limited First Amendment protection from employer retaliation for free speech that private sector employees generally do not enjoy. To be protected, the employee’s speech must have been undertaken in the employee’s role as a citizen, and not pursuant to his/her job duties, and the speech must address a matter of public concern. Three recent court decisions have clarified and expanded the scope of protection for public employees in regards to Public Sector Labor Law, Employment Law and Education Law.

 

Police Officers Who Report Misconduct Cannot be Excluded from First Amendment’s Protections

• In Dahlia v. Rodriguez, the Ninth Circuit Court of Appeals reversed itself and concluded that internal, up-the-chain-of-command complaints about departmental misconduct do not automatically fall outside the scope of First Amendment protection.
• Dahlia was a police detective who reported police officers’ abuse of witnesses to his supervisors.  In response, his supervisors threatened him and placed him on administrative leave.
• The Ninth Circuit had previously adopted a rule that California police officers who report internal department misconduct always do so pursuant to their employee duties – not as citizens.  In Dahlia, the court recognized that this approach discourages public employees from exercising their free speech rights.  The court reversed course and emphasized that courts must consider the facts and circumstances of each case to determine whether a public employee speaks pursuant to job duties or as a citizen.  (The court also found, for the first time, that administrative leave may constitute an adverse action triggering a right to sue for retaliation.)

 

Public Educator Academic Speech Protected by First Amendment

• In Demers v. Austin, the Ninth Circuit also expanded the free speech rights of public teachers and professors in California by confirming that their “academic speech” is entitled to protection under the First Amendment of the U.S. Constitution.
• When the U.S. Supreme Court in 2006 added the requirement that public employee speech be made as a citizen, and not pursuant to job duties, the Court noted that this test might not necessarily apply to “speech related to scholarship or teaching.”  The Ninth Circuit has now concluded this test does not apply to academic speech.
• Demers, a professor at Washington State University, created a pamphlet criticizing the administration of the university’s communications program and making recommendations for its improvement.  Demers authored the pamphlet while serving on a university committee that was debating these issues and circulated it both inside and outside the university.  The Ninth Circuit concluded that the pamphlet, because it included broad proposals to improve the university and the proposals were matters of public interest, constituted protected speech, even though it was authored as part of Demers’ official duties
• The court explained that teaching and academic writing are core professional duties of public teachers and professors, and both are essential to promoting academic freedom – one of the key interests the First Amendment is designed to protect.  Leaving “academic employee speech” unprotected, merely because it occurs in the course of public educators’ professional duties, the court concluded, would conflict with the First Amendment.
• After Demers, California public educators’ academic speech will be protected under the First Amendment if it relates to matters of public concern and the teacher’s interest in speaking out is greater than the school’s interest in limiting the speech.  The Demers court also made clear that protected academic speech is not limited to academic scholarship, but that other forms of speech (memoranda, reports, etc.) may also be protected if they discuss topics of public interest such as budgeting, departmental structure, or faculty hiring.  By contrast, speech that relates to a teacher’s personal issues, issues of no interest to those outside the institution, and speech made to a limited audience may not relate to public concerns and may not be protected.

 

“Liking” Candidate’s Facebook Page is Protected by First Amendment

• In a case recently reviewed by the Fourth Circuit Court of Appeals – the federal appellate court for Maryland, North Carolina, South Carolina, Virginia and West Virginia – several employees of a state sheriff’s office alleged they had been unlawfully discharged because they had supported the sheriff’s opponent during the prior election (Bland v. Roberts).  One of the discharged employees came to the attention of the sheriff because he had “liked” the opponent’s campaign Facebook page.  The court ruled that clicking the Facebook “like” button was a protected form of political speech because it caused a statement – i.e.,  that the employee approved of the opponent’s candidacy – to be published on the Internet.  The Court observed that “liking” a candidate’s website is the Internet equivalent to displaying a political sign in your front yard, another established form of protected speech.
• As new technologies continue to emerge, the law is challenged to keep pace with these changes.  This case is a good example of how labor and employment law is constantly evolving to address novel legal issues raised by the Internet and social media.

 

Beeson Tayer and Bodine (BT&B) labor law practice areas cover both public and private sector union and employee job rights.  Search our employment law blog and sign up for our newsletter for more information on legal activities related to union and employee representation.

 

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