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I.
Public employees have rights to free expression and to association under
the First Amendment. These rights prohibit employers from taking action
against employees based on protected speech and association. But
judicial decisions have not clearly defined exactly which activities of
public employees are protected.
A. The old law was more certain but much less
favorable. As stated by Justice Oliver Wendell Holmes: "The
petitioner may have a constitutional right to talk politics, but he has
no constitutional right to be a policeman." maculae v. Mayor of New
Bedford, 29 N.E. 517, 517-18 (1892).
B. These old decisions have been overruled and
replaced with general protection of First Amendment rights. "It is
clearly established that a State may no discharge an employee on a basis
that infringes that employee's constitutionally protected interest in
freedom of speech." Rankin v. McPherson, 483 U.S. 387, 383 (1987).
C. Although generally protective of First
Amendment rights, the new law does no confer absolute protection. In
contrast to the old law, the new law is more favorable to public
employees but much less certain. The principle uncertainties are these:
1. In order to be protected at all, the speech must be
"fairly characterized as constituting speech on a matter of public
concern." Connick v. Myers, 461 U.S. 138, 146 (1983).
2. Or it must be
related to the right of association which, in the context of public
employment, applies to association in labor unions. Smith v. Arkansas
State Highway Employees, 441 U.S. 463, 464-65 (1975) (per curium).
3. The degree of
protection that the speech receives depends on "a balance between
the interests of the [public employee], as a citizen in commenting upon
matters of public concern and the interests of the State, as an
employer, in promoting the efficiency of the public services it performs
through its employees." Pickering v. Board of Education, 391 U.S.
563, 574 (1968).
4. Even if a violation
of these rights is found, the remedies available to public employees
depend on further technical legal issues, such as causation and
immunity.
a. Causation involves the relationship between the employee's
exercise of First Amendment rights and the adverse action taken by the
public employer, such as discipline or discharge.
b.
Immunity involves the question of whether the public employer itself or
individual supervisors are liable for damages.
c. Because of these complications, it is necessary to exercise
rights of free speech and association on the right topics and in the
right way. Otherwise, a public employer can discipline and employee for
reasons not prohibited by the First Amendment.
1. Fortunately, rights to speak on general issues of law
enforcement and on union membership and organizing are well established.
These are:
a. The right to form, join, and lead a union.
b.
The right to engage in union organizing outside or working hours.
c.
The right to speak on general issues of law enforcement and public
safety.
2. The outer limits of these rights may not be clear, as revealed
by the complex and conflicting decisions discussed in this outline. But
the core protection of the First Amendment allows speech in some form.
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