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Public employers (like townships!) are more limited than private employers in the ability to discipline or even terminate their at-will employees, including for what they say or post on social media outside of work hours. The 1st and 14th Amendments to the US Constitution guarantee that federal, state, and local governments will not interfere with citizens’ freedom of speech. This means township employees still have some First Amendment rights when they come to work, though to a lesser extent than when they head home. When township employers discipline or terminate employees for their speech, these constitutional rights can come into play. Township employers are still entitled to exercise control over and maintain a productive work environment. Township officials must perform a “balancing act” with the employee’s rights on one hand and the public employer’s interests on the other. By balancing these interests, we can decide whether a township employee’s speech is protected.

The Test

Public employees enjoy some well-established First Amendment protection under some circumstances—including when the speech is about their Township employer! This protection limits when employee speech can be the basis for discipline. But that is not to say that township employers can never discipline employees for their speech. Township employers can discipline, but it may violate employees’ constitutional rights if the following three standards are met:

1. The employee is speaking as a private citizen, and not as part of his or her official duties;
2. The employee is speaking on a matter of public concern; and
3. The employee’s speech interests outweigh the municipality’s interest in operating efficiently and effectively. Garcetti v Ceballos, 547 US 410 (2006).

So, what is private speech? What is a matter of public concern? How do we balance these interests? The answers to these questions really depend on the facts of each individual case, so we will look at examples to get a better understanding of how this test works.

Is the Employee Speaking as a Private Citizen?

We know that township employers still have a strong interest in maintaining control over the workplace and ensuring productivity. Sometimes, employee speech interferes with these interests, even when the employee is not speaking as an employee. However, when an employee is speaking as a private citizen, not as a part of their official duties, that speech is much more likely to be protected. Speech that is a part of an employee’s job or official duties can be disciplined more easily. To determine whether an employee is speaking as a private citizen, we must look to the specific facts and ask the typical “who, what, when, where, how, and why” questions. If the speech is not a part of the job or official duties, and the public would not understand the employee to be speaking as a township spokesperson, the employee is likely speaking as a private citizen.

Consider this case, about two police officers who attended a city council meeting. They sat with the audience and wore their police uniforms. During the portion reserved for official city business, the police officers addressed the city council to discuss the mayor’s proposed overhaul of the police department. The discussion got heated and one officer told the council to “go ahead and take a vote to terminate me” because he did not want to see the effects of the overhaul. The officers were suspended and later terminated. The 6th Circuit Court of Appeals upheld the lower court’s determination that the officers were not speaking as private citizens. The Court highlighted the fact that the police officers were in uniform and spoke during the official business portion of the meeting, not during public comment. Additionally, the officers were speaking directly to the governing body that they reported to. Therefore, they were speaking in line with their official job duties and as employees, so the city council could discipline them for failing to follow the chain of command and disturbing the meeting. Anderson, et al v City of Jellico, 2022 WL 1308503.

Consider how that case might turn out differently. What if the officers had not worn their uniforms? What if they spoke during the public comment period instead? What if they had voiced their concerns from their own homes on social media instead? Any one of those differences could have changed the outcome of the case.

What is a Matter of Public Concern?

Once again, this question requires a very specific analysis of the facts. Generally, a matter of public concern is “any matter of political, social, or other concern to the community.” In other words, if a topic is newsworthy, it is likely a matter of public concern. Courts will interpret this definition broadly. Courts do not consider personal griping to be a matter of public concern. However, employee opinions —even controversial ones —that touch on widely known and discussed topics are more likely to be protected. Employees only lose their constitutional protection here if they speak on personal matters, like internal disputes with coworkers, a missed promotion, or frustration with their boss (though some of these might be protected by state labor law).
Courts look to whether the public would want to know or should know the information that the employee is discussing. Internal office politics or annoyance over the employer’s internal policies are often not considered matters of public concern. Potential misconduct of government officials or potential cover-ups of misconduct, while they relate to the workplace, are generally seen as matters of public concern. The public would want to know and should know about these things, and public employees are often the ones with the most information about these incidents.

Consider a city fire marshal whose responsibilities include investigating origins of fires. He investigated a fire that destroyed a large building where a movie was being filmed. Unfortunately, the fire seriously damaged the building and resulted in the death of a firefighter. The fire marshal concluded that the cause of the fire was either a boiler that was the subject of unauthorized repairs or the activities of the movie production crew. He ultimately informed his supervisors that he believed the movie crew caused the fire. His supervisors told him to terminate the investigation and file a report concluding the boiler caused the fire, which the fire marshal refused to do because he viewed this as a false report. He filed a complaint about his supervisor’s actions with the city, emailed other fire marshals about the event, and met with the District Attorney’s Office. The fire marshal contributed to a local news story and an article about the incident. He was demoted and sued the city.

The Second Circuit Court of Appeals found that the emails to the other fire marshals were only internal workplace grievances, not matters of public concern, but his refusal to file a false report and reports to outside agencies were protected as matters of public concern. The emails were not protected because the content was not a matter of political, social, or community interest. It related to an internal work issue he was having with his supervisors. Additionally, his intended audience was his colleagues- not the public. Even if the emails were released to the public, they did not convey information other than the fact a single employee was upset by a workplace incident.

However, the fire marshal’s report to the news, his complaint about his supervisor, and his meeting with the District Attorney were protected under the First Amendment. Possible governmental misconduct or a coverup are legitimate and important topics of public concern. He also alleged that movie crews making these kinds of mistakes and causing fires are “common.” Therefore, because this implicates matters of public importance such as government malfeasance and public safety, this is a matter of public concern. Specht v. City of New York, 15 F.4th 594 (2nd Cir. 2021).

You might be asking “but was he acting pursuant to his official duties?” The city made that argument since his job is to investigate and report on fires, but the Court did not agree. While filing investigative reports is part of a fire marshal’s job, this case was about the refusal to file a false report. The Court previously held that the refusal to file a false report may have First Amendment protection. Additionally, it was not in his official job duties to report to outside agencies, and citizens were empowered to voice complaints to the same agencies in the same way the fire marshal did. Therefore, he spoke as a private citizen.

The Breakdown: Balancing

The last step of the analysis evaluates whether the employer’s interest in operating efficiently outweighs the individual’s interest in free speech. Traditionally, this can be shown when the employee’s speech disrupts a municipality’s normal operations. Speech can be disruptive if it interferes with work, personal relationships, the speaker’s job performance, or the effective functioning of the public employer’s enterprise. This disruption, or the potential for disruption, is weighed against the employee’s right to free speech. Once again, this is a highly fact-specific analysis.

When balancing interests, courts will look to actual interference caused by speech. For example, if speech is so offensive that coworkers will not feel comfortable working alongside the speaker, the employer has a stronger interest than if no coworkers heard about (or care about) the speech. If an employer can prove that the speech harms its ability to work with the public, especially if the employee must work with the public, the interest is stronger. For instance, if police officers or firefighters use racist language, a public employer can point to its own obligation and necessity to maintain public trust and work with the public, and that employee’s speech creates divisions and could alienate entire groups that the officer or firefighter is obligated to serve and protect.

Consider a state university professor who identified as an Evangelical Christian. The university created a new policy that required faculty to refer to students by their preferred pronouns and provided discipline for any professor who refused. In the professor’s class, he typically referred to students by “Mr.” or “Ms.” followed by their last name. In one semester, a transgender student in his class asked to be referred to by her preferred gender identity and pronouns. The professor refused, explaining his sincerely held religious beliefs prevented him from communicating messages about gender identity that he believed were false. This was reported to university officials. A compromise was reached where the professor would only use the student’s last name. The student was dissatisfied, and the professor was told he had to either address the student as a female or cease using sex-based pronouns when referring to students at all. He suggested a disclaimer in his syllabus “noting that he was [using preferred pronouns] under compulsion and setting forth his personal and religious beliefs about gender identity.” This was also rejected, and he was disciplined.

In addressing his First Amendment claim, the Sixth Circuit noted that the First Amendment protects both the right to speak freely and to refrain from speaking. Clearly, the professor was speaking about a message of public concern; gender identity and preferred pronouns is a political and social message that is highly visible in the news and on social media. The Court also noted that his interest in his free speech was amplified because he was speaking on core religious and philosophical beliefs. It is also amplified because, unlike many cases where public employers want an employee to stop speaking freely and remain silent, the university was compelling speech by requiring him to use the student’s preferred pronouns. Moreover, society’s increasing embrace of gender identity advanced the need to protect the First Amendment rights of those who disagreed. This was salient in the context of college classrooms where students had an interest in contrarian views.

On the other hand, the university had a compelling interest in preventing discrimination against transgender students. However, the Court clarified that the government did not have a compelling interest in regulating employee speech on issues of public concern. This is because the university would then be able to discipline professors and students wherever speech cause offense, which negates the purpose of the First Amendment protections. Therefore, the Court held the university’s interest was comparatively weak, especially since the professor proposed a compromise to only use the student’s surname- which the court viewed as a “win-win.” Because the student continued to have high grades and was able to participate in class, there was no evidence the professor’s speech inhibited his duties, the operation of the school, or the student from receiving educational benefits. Therefore, anti-discrimination interests were not triggered and the balancing test favored the professor. Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)

A Word on Off-Duty Conduct

Clearly, township employers should be very cautious about imposing discipline for off-duty conduct, especially where the off-duty conduct is political expression. Off-duty conduct and speech are much more likely to be protected than conduct and speech during the work day. Employees are more likely to be speaking on matters of public concern and are certainly more likely to be speaking as private citizens when they return home at the end of their workday. However, if an employee’s off-duty conduct crosses into daily duties or impacts the employer’s interactions at work in some way, there may be some basis to take action anyway.

Under some circumstances, it is entirely appropriate to discipline township employees based on their off-duty conduct, but take extra care and be deferential to free speech interests in these cases. There are special circumstances that exist where the employer can show that the speech would likely interfere with or disrupt the workplace, or the speech actually disrupted the workplace, and the potential or actual disruption outweigh the value of the speech.

Consider a public-school bus driver. While off-duty, she posted on Facebook endorsing a particular candidate for the Board of Education and criticizing a current member. The post said:

Unfortunately, Molly will never take the blame of things… much like her children! I have bit my tongue for quite some time now… but with this all being said and done. Politics in this town are absolutely disgusting. My child was singled out, bullied, talked down to… BY HER CHILDREN. She should focus on getting her mess under control… Before worrying about anything else! You have done a wonderful job thus far, Michelle.

The endorsed candidate apologized to the bus driver and offered to help but requested that any further conversation be had in private since children were involved. The criticized candidate called the bus company to complain about the post. The Board sent a letter to the bus company terminating the bus driver from all assignments for the district.

Even though the bus driver was a contractor, the government still may not restrict her free speech and we use the same framework to evaluate the bus driver’s claim. The court focused on whether or not this was speech on a matter of public concern as opposed to a personal gripe against the candidate. The court held that, although the criticism in the Facebook post was not “high-minded,” it is protected by the First Amendment. It speaks about a matter of public concern- the way a Board candidate handles her own family and bullying. This can be said to bear on her character and fitness for the position. The speech was also on a public campaign page and spoke in favor of a candidate and in criticism of an opponent. Thibault v Spino, 431 F.Supp 3d 1 (D. Conn. 2019).

Tips and Tricks

• Remember, off-duty speech and speech about politics are more likely to be protected.
•  Consider whether the employee was speaking as a private citizen. Consider whether the speech relates to important social or political issues.
• Carefully analyze the content and context of the particular speech to determine whether the speech could be protected under the First Amendment. Ask who, what, where, when, how, and why?
• Explain that the use of social media should take place while off-duty. On-duty social media use is permitted only if approved or if part of regular job duties.
• Take some time to consider disciplinary decisions for speech. Do not get caught up in the moment. Allow any strong emotions to cool down before taking action.
• Before taking any disciplinary action based on township employee speech, consult with your labor and employment counsel.

Conclusion

Township employers are often surprised to learn the restrictions on their ability to discipline employees for speech. Keeping in mind the factors in the test for employee speech is an excellent starting point when considering whether action is appropriate in response to employee speech. If your township has any questions about employee speech rights both on and off the clock, reach out to the experienced labor and employment attorneys at Fahey Schultz Burzych Rhodes PLC.

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.