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First Amendment

Does The First Amendment Protect A Government Employee From Discipline For Expressing His Opinion?

Short Answer:  It depends. If the speech is not of public concern and only relates to the public employee’s job, there is no protection. If the speech is of public concern, a balancing test is required.


In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court addressed the issue of whether the First Amendment protects a government employee from discipline based on statements he made about matters that related to the employee’s official duties (specifically his duties as a prosecutor concerning the use of a police officer’s testimony). Before issuing its ruling, the Court noted that for many years its philosophy had been that a public employee had no right to object to conditions placed upon the terms of employment-including those which restricted his speech and other constitutional rights. It then noted that the trend changed and that courts have made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. This analysis required a two-prong analysis.

First, a court needed to determine whether the employee spoke as a citizen on a matter of public concern. If the answer was no, the employee has no First Amendment protection and no right to sue for that right being restricted. If the answer was yes, there was a public concern, then courts must look at whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. The Court noted that this consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.

The Ceballos Court stated that when an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. It concluded, however, that when public employees make statements as part of their official duties (such as criticizing the office’s decisions), the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. The Court reasoned that restricting speech that owes its existence to a public employee’s professional responsibilities (in this case, the prosecutor’s views on how a case was handled and use of the questionable testimony) 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.

Side Note: Currently, the Supreme Court is currently considering the protections offered by the First Amendment in relation to families right to privacy at funerals. Briefly, the father of a marine is asserting that he is entitled to damages against Westboro Baptist Church for protesting at his son’s funeral. See Snyder v. Phelps, No. 09-751.  That decision should have far-reaching ramifications as numerous states have passed laws restricting protests at funerals. Mostly recently a few days after the January 2010 incident in Tucson, AZ in which a congresswoman was shot, and a federal judge and others were killed, Arizona passed a law making it a criminal offense to picket or protest within 300 feet of a funeral/burial service.

Words of Caution:Be careful what you say about work-related matters. Even if it appears unfair, an employer can probably succeed in firing an employee who criticizes his employer’s specific decisions. Moreover, a court will probably be reluctant to expose the employer to liability, and may be more likely to find the employee’s speech did not involve a matter of public concern.

If you have questions, please contact Mark H. Wagner, Esq. at