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FIRST AMENDMENT RIGHTS: Gregory K. McGillivary First Amendment rights of unionized law enforcement employees routinely arise in one of three scenarios :
This is a primer to permit union officials to recognize when it appears that the First Amendment rights of the members possibly are being violated so that the official will know when to contact an attorney and what type of facts to gather before speaking to the attorney. This is not intended to be a substitute for the complex legal analysis that governs whether or not First Amendment claims are legally meritorious. WHAT DOES THE FIRST AMENDMENT PROTECT? Unlike their private sector counterparts, public employees are entitled to the protections and rights of the First Amendment in the performance of their job. There are two basic rights that the First Amendment provides for public employees:
These two basic rights are often implicated in each of the scenarios identified above. For example, a union official will speak out about a matter of public concern, such as the poorly funded budget putting the public’s safety at risk, and do so on behalf of the Local which represents the majority of police officers in the department. The City or County will then react by disciplining the speaker and ordering that no more materials from that organization are allowed at the workplace WHAT TYPE OF SPEECH IS PROTECTED: EMPLOYEES DISCIPLINED FOR SPEAKING OUT. The Supreme Court has laid out a very specific type of analysis to determine whether or not a public employee’s speech is protected under the First Amendment. This usually arises in the context of an official speaking out on something and the employer disciplines the employee for violating a department rule regarding conduct unbecoming an officer or something along those lines. Is the Speech About a Matter of "Public Concern?" The Supreme Court’s analysis begins with analyzing whether the employee is speaking out on a matter of public concern. Although the Supreme Court recently reiterated that "the boundaries of the public concern test are not well-defined," the Court looks to the content, form and context of a statement. Connick v. Myers, 461 U.S. 138 (1983). In addition, the speech must be a subject of legitimate news interest; a subject of general interest and of value and concern to the public. This includes statements made in private. Statements concerning individual workplace grievances such as not getting a promotion or complaints that someone else won an award are not usually considered matters of public concern. For example, a medical technician’s diagnoses of patients in violation of a department order were held not to be a matter of public concern. Statements about the general condition of the department or policies of the department adversely affecting the public are clearly considered matters of public concern. For example, a statement that a department policy regarding the police chief’s misallocation of staffing creating dangerous safety concerns in a part of the jurisdiction or at a time of day would be a matter of public concern. An employee’s complaint that the police chief’s prohibition on outside employment in establishments that sell alcohol would probably not be considered a matter of public concern. A recent Supreme Court case, City of San Diego v. Roe, 125 S.Ct. 521 (2004) illustrates the type of speech that is not considered to be about a matter of public concern. In Roe, a police officer made sexually explicit videos of himself in a police uniform, though not the uniform of his employer - the City of San Diego, and sold it on E-Bay. Under his user name, "Code3stud," he also sold police equipment and official uniforms of the City of San Diego. He was disciplined and told to stop. Although he stopped selling some items, the police officer continued selling others in violation of the Department’s prohibition. He was fired and he then sued under the First Amendment. The Supreme Court upheld the termination finding that the materials the police officer peddled on E-Bay did not constitute a matter of public concern. He was told not to sell videos depicting him as a police officer because the videos reflected badly on the Department. The Court upheld this as a valid restriction on speech. In assessing whether speech is a matter of public concern, an important factor is the context in which the speech is made. For example, restrictions related to speech at the workplace merit much less First Amendment protection than statements made in the privacy of one’s home unless the statement was intended to be private such as a conversation among co-workers. For example, in Rankin v. McPherson, 483 U.S. 378 (1987), an employee’s negative statement made about President Reagan made at the workplace which was intended to be part of a private conversation that was overheard was found to be about a matter of public concern. The Pickering Balancing Test Determining whether or not the speech is about a matter of public concern is only the threshold test for determining whether it is entitled to First Amendment protection. Speech about matters of public concern can be restricted. To determine whether a government’s restriction on an employee’s speech is legitimate, the court balances the interests of the employee as a citizen in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs. Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The employer bears the burden of establishing that its restriction on speech is necessary. For example, restrictions on workplace speech were struck down with respect to a carpenter at a hospital who wore a pro-union pin during an organizing campaign. The court found that the hospital’s claims of disruption were contrived and there was no evidence that allowing the carpenter to wear a button while working affected the efficient operation of the hospital whatsoever. In contrast, a court recently upheld the dismissal of three police officers who spoke to the media concerning the actions of their Police Chief that they viewed as misconduct, including "ticket fixing" practices, improper logging and taking of compensatory time, and improper claims that the chief had qualified on the shooting range. Additionally, while under internal investigations for making these claims, they conducted interviews with the press concerning the merits of the allegations against them. Each time the officers took an issue to the press, they did so immediately, before the Chief could investigate the allegations. The court held that when police officers' speech is "reasonably calculated to create division," the speech may be unprotected because of its potentially negative effect on the public. Furthermore, a police chief cannot be expected to "tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships, and a City cannot be expected to tolerate officers who use both the media and disruptive behavior in the workplace to influence personnel changes. The court concluded that the police officers clearly intended to create division among the officers. The news articles and media coverage forced other officers to choose between the plaintiffs and their chief. The Court stated:The plaintiffs created a "you are either for us or against us" atmosphere within the station house, and the Chief cannot be expected to tolerate such disruptive behavior. A police chief needs authority over and loyalty from his subordinates. The officers claim the chief should have expected disagreement from them because they were union leaders; however, he could not have expected to tolerate a media campaign asking for his resignation. This case is somewhat anomalous in that the police officers went well beyond simply a few contacts with the media, instead actually creating what the court called a campaign of division. Usually, contacting the press about a matter of public concern such as corruption or misallocation of resources will be protected under the First Amendment. As can be seen from this case, First Amendment cases involving law enforcement employees can be somewhat more difficult to analyze than in other contexts. Was the Speech the Motivating Factor? A common issue in First Amendment cases is whether or not the employer is disciplining the employee for the speech or for other misconduct. This issue can become blurred when the department claims that it is not disciplining the employee for his/her speech but for insubordination or violating a department rule. For example, a department may issue a rule requiring that all requests to contact the media must be approved through the department. The employee contacts the media and speaks out on corruption in the department, and is disciplined for not following a department rule rather than his speech. VAGUE OR CONTENT BASED RESTRICTIONS ON SPEECH The right to speak out on matters of public concern cannot be prevented by imposing vague or content based restrictions on speech. This typically arises in the context of restrictions that employees are forbidden from speaking to the media about anything having to do with the department or are forbidden from speaking to the City Council or other elected representatives. Restrictions that are overly broad are usually easy to strike down if they result in absolute prohibitions against speaking out to the media or elected representatives. Similarly, restrictions on the content of speech are struck down if they affect matters of public concern or associational rights. For example, a court struck down a regulation by the City of Bristol, Tennessee which prohibited any materials related to unions from being at the workplace. The court noted that the City permitted other materials unrelated to work such as news magazines so it could not justify singling out union materials. UNEQUAL OR UNFAIR TREATMENT BASED UPON ASSOCIATION WITH A UNION Mistreating employees based on union affiliation is prohibited under the First Amendment in nearly all circumstances. This typically arises with regard to restrictions on use of e-mail or bulletin boards, dues withholding, and new employee initiation meetings. If other non-workplace organizations are allowed to use the employer’s facilities or equipment for any of these purposes then, in most cases, a union will be entitled to do so as well. For more help: |
