April 18, 2018 – The First Amendment protects public employees from retaliation by their employers when they exercise free speech rights. In this video, civil rights attorney Jeff Scott Olson explains what speech is protected, and what is not protected.
This body of law started with Marvin Pickering, a school teacher in Indiana who wrote a letter to the editor of a local newspaper concerning the school board’s handling of funds.
Pickering was fired. Ultimately, the U.S. Supreme Court ruled, Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, that Pickering’s letter to the editor was protected free speech and he could not be fired for submitting it.
“The court ruled that he had a right as a public citizen to speak out on a matter of public concern,” said Olsen, one of two panelists discussing “Freedom of Speech: Exploring the Rights of Public and Private Employees,” a webcast produced by State Bar of Wisconsin PINNACLE®. Another landmark decision distinguished Pickering.
In Connick v. Myers, 461 U.S. 138 (1983), the U.S. Supreme ruled that an assistant district attorney in New Orleans was not protected when she distributed a questionnaire to other assistant district attorneys that was viewed as critical of management.
“The Supreme Court said it was probably legal to fire her because she was talking about matters of purely private concern,” Olsen said.
“That case started a trend among the courts of looking at whether an employee’s allegedly protected expression for which the employee was alleging retaliation was a purely personal grievance, and if it was, it was not protected against retaliation.”
In assessing a particular case, Olsen says lawyers need to ask whether the employee is speaking on a subject that is of legitimate public interest and whether the employee was speaking pursuant to his or her official job duties, another line in free speech cases.
“Only speech outside of one’s official duties is protected by the First Amendment,” said Olson, noting Garcetti v. Ceballos, 547 U.S. 410 (2006).
Olsen’s in depth treatment of free speech in the workplace for public employees is available via webcast replay in April and May. The program (2 CLE credits) also includes a presentation on free speech and private employees. The replay will air from noon to 2 p.m. on the following dates: April 19; April 25; April 30; May 11; May 16; and May 24.