When an Employee’s First Amendment Free Speech can Lead to Termination

September 20, 2013

The first amendment rights of public employees are not absolute. There is a careful balance between the free exercise of speech and the legitimate interests of the government. High-ranking public officials sometimes cross the line between legitimate political discourse and scary or disruptive assertions. A recent example of some extreme “political” statements in the news was the City of Gilberton, Pennsylvania’s decision to terminate its police chief, Mark Kessler. As reported by CNN and other outlets, Kessler posted a video to the internet of himself firing an assault-style weapon, and then making “anti-liberal” and “pro-gun” statements, topped off with a challenge to the United States Secretary of State to try to “take his guns” away. While Gilberton officials may assert other reasons for their decision, the question of Kessler’s right to make his public statements under the First Amendment to the U.S. Constitution comes to mind.

While all citizens enjoy the rights under the First Amendment, including the right to free speech, the right can only be upheld against the government. Free speech rights do not extend to private settings where the government is not involved. Thus, no one is required to tolerate speech they disagree with in their own homes. The same is true for private employers: we have no constitutional right to say whatever we please at work. In the area of employment law, free speech only protects those, like Kessler, who are employed by a government employer.

So, did the First Amendment give Kessler right to express his political views, on his own time, in videos he posted to the internet? Because of his position and the way he chose to express himself, the answer has to be “no.” The constitution does not require government employers to tolerate angry, disruptive speech under the guise of political discourse. This is especially true when the speaker is a high-ranking law enforcement officer.

As stated above, according to the First Amendment, all citizens enjoy the right to speak their minds about the government. It is important to protect citizens who work for the government just as much as everyone else. But, there are limits. Federal Courts sitting in Georgia consider several factors in deciding whether a public employee’s speech is protected under the first amendment. There are two important legal questions in determining whether an employee’s statements are protected:

  1. Does the employee’s speech involve a matter of public concern?
  2. Does the employee’s interest in speaking outweigh the government’s interest (as an employer) in delivering efficient public services?

Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.1989). Answering these questions is not as simple as it seems.

The “public concern” question is usually the most important first amendment determination. That is because the first amendment does not cover merely personal grievances or statements that do not involve matters of public concern. The important distinction courts look for is whether the person speaking was doing so as an employee or whether they were speaking as a citizen on a public issue. The law does not protect normal statements that a public employee makes because of his or her employment. The Supreme Court has defined a public concern as “something that is the subject of legitimate news interest,” or a statement that is of value or concern to the public at the time it is made. City of San Diego v. Roe, 543 U.S. 77, 84 (2004). This involves looking at the context, content, and purpose of the words being spoken. For example, speaking out during a public forum about the political implications of particular government decision would be protected speech.

The next important question – the “government interest” question – tries to determine whether the government, as an employer, has an interest that outweighs the interest of the employee in making the speech. To do this, courts use what is known as the “Pickering balancing test.” The test comes from a 1968 Supreme Court case, Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), where the Court explained as follows:

[T]he state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.

Id. at 568. This test looks at several factors: (1) whether the speech impedes the government’s ability to perform its duties efficiently, (2) the manner, time, and place of the speech, and (3) the context of the speech. Under this test it is possible that one could speak out on a matter of public concern, but do so in a way that interferes with the government’s need to operate efficiently. Consider that someone who speaks out on an important matter and does so in a way that is violent, insubordinate, or disruptive. In that case, the government-employer’s interest in maintaining a safe and cohesive workplace may outweigh the importance of the protected speech.

That’s the problem with Mr. Kessler’s alleged political expression. His speech clearly touches on a matter of great public concern: gun rights. As Kessler reportedly stated on the issue: “I believe in my country, its constitution and what it was founded on. I have the right to express myself under the First Amendment, and I have the right to express myself under the Second Amendment with the firearms. Maybe people didn’t like it, but I have that right.” The right to free speech is not absolute. When a top law enforcement official of a city exhibits arguable contempt for citizens based on their political leanings and issues a challenge to the United States Secretary of State to try to take his guns away, there is cause for concern. For an employer charged with serving all of its citizens, it could send the message to the public that if you’re a liberal or you support gun control, the chief won’t be on your side.

The moral of the story is that not all speech is protected speech. As a citizen, Kessler had the right to voice his support for the Second Amendment, as he says. But, as an important law enforcement official, he must exercise reasonableness because the message he communicates can undermine his employer’s mission and service.

The lawyers at Parks, Chesin & Walbert represent public employees and employers in a wide variety of disputes, including discrimination, pension disputes, and the exercise of first amendment speech. Contact us for a free assessment of your situation.

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