Most reported decisions in court cases addressing only the subsequent discipline of a public employee for speech, rather than the prior restraint of such speech, have ruled for the employing government agency.
Connick v. Myers (Supreme Court 1983)
To be protected, speech by a public employee must be a matter of public concern.
Assistant District Attorney Sheila Myers was fired for distributing a questionnaire to fellow prosecutors asking about the DA’s management practices after receiving a transfer she had fiercely resisted. The questionnaire solicited opinions about:
- Office morale
- Work assignments
- The need for a grievance committee
- Confidence in management and
- Whether officers and staff felt pressured to work on political campaigns
The trial judge found the firing had been motivated by the questionnaire and was thus an infringement on Myers right to speak out on matters of public concern. The Supreme Court reversed, noting that only the last matter was possibly of public concern -- the rest were personnel grievances. The Court stated that whether speech was about a public concern must be decided in the context of the expression. Finally, the Court concluded the action had damaged the harmonious relations necessary for the efficient operation of the district attorney’s office.
Garcetti v.Ceballos (Supreme Court 2006)
Even if public employee speech is about a public concern, it’s not protected by the First Amendment unless employee made it as a private citizen.
A defense attorney in a pending criminal case contacted Deputy DA Ceballos about his motion to challenge a search warrant based on inaccuracies in the supporting affidavit. Ceballos investigated and concluded the affidavit contained serious misrepresentations. Ceballos contacted the deputy sheriff who’d sworn out the affidavit but wasn’t satisfied by his explanations. Ceballos then communicated his findings to his supervisors and submitted a memorandum in which he recommended dismissal of the case. A meeting was held with his superiors and officials from the sheriff’s department, which Ceballos claimed became heated and critical of how he was handling the case. His supervisor decided to proceed with the prosecution. The trial court held a hearing on the motion. Ceballos was called by the defense to testify. The trial court denied the motion and upheld the warrant.
Ceballos claimed he was subsequently subjected to a series of retaliatory actions and that his speech was protected by the First Amendment. The Supreme Court concluded that while Ceballos’ speech may have been a matter of public concern – his belief there had been government misconduct – he’d made it as part of his job duties, not as a private citizen. Accordingly, it was not protected by the 1st Amendment. The Court noted it might be protected by a state whistleblower statute.
Nixon v. City of Houston (Fifth Circuit 2007)
Nixon was an officer with the Houston PD. Off duty, he wrote a monthly column for a Houston magazine in which he identified himself as a police officer, discussed his police-related activities, and commented on his duties as an officer and HPD policies. A citizen complained. Nixon had not been authorized by the HPD to write the column. The Chief ordered an investigation that found Nixon had made offensive statements about minorities, women, and the homeless. Nixon was fired. He sued, claiming his dismissal was retaliation for protected speech.
The Fifth Circuit concluded Nixon’s speech was about matters of public concern and was made as a private citizen since it wasn’t approved by the HPD nor part of his duties. The court next balanced Nixon’s interest in the speech against the HPD’s interest in positive working relations with the community and ruled in favor of the HPD.
Main point
When courts rule on a public employer’s disciplinary action against a specific incident of a public employee’s speech for purposes of First Amendment protection, the public employee must establish the speech:
- Addressed a public concern, and;
- Was made by the employee as a private citizen.
Even if the employee prevails on one and two listed above, the court must still balance the employee’s interest in the speech against the agency’s interest in accomplishing its mission.
Given law enforcement’s critical mission and the need for discipline, order, and community trust and cooperation to accomplish the mission – this three-prong test is a high hurdle for public employees to overcome.
NEXT: When the PD social media policy meets the First Amendment
