Freedom of Speech for Public Servants
Thanks to a major Supreme Court ruling in 2006 (Justice Samuel Alito’s first swing vote), public employees at all levels have no – as in zero – First Amendment free speech rights when in their role as public servants This because, the court reasons, government owns their speech. Only by stepping outside that role and acting as a citizen does one regain those free speech rights.
The pendulum is beginning to edge back as the Supreme Court ruled in 2013 that public employees testifying in court have free speech rights even when the testimony is solely about their public service. In addition, state constitutions contain free speech safeguards which are interpreted more broadly that the U.S. constitution.
Even when public employees speak outside their role as government workers, their free speech rights are not unlimited (i.e., they may not shout “fire” in a crowded theater). Instead, the extent of constitutional protection is subject to a balancing test in which the public importance of their speech is weighed against the adverse impact of that speech on the efficiency of the government agency. Thus, these cases depend upon the circumstances.
Freedom of Speech in Action
One example from the PEER case files is an Army Corps biologist who faced discipline for kayaking the L.A. River (on her own time) to show it was navigable and thus worthy of protection under the Clean Water Act. PEER argued that her kayak trip, which had gone viral on social media, was protected symbolic free speech.