The first amendment does not protect employees at work who criticize their boss or their company.

As a government employee, you still have a First Amendment right to speak out on important issues. However, your government employer also has an interest in promoting an effective and efficient workplace. In this guide, we break down your speech rights under the Constitution. As a general matter, if you are speaking

1. as a private citizen,
2. about a matter of public concern, and
3. your speech does not interfere with your job,

your speech is protected.

However, there are exceptions. You can use the flowchart inside this guide to help you figure out whether or not particular types of speech are likely to be legally protected.

This guide does not provide specific legal advice, but rather provides an overview of this complex area of law. If you believe your rights have been violated, contact your agency’s Inspector General, or the ACLU!

The Constitution and Bill of Rights. Spencer Platt / Getty Images

Google has fired the engineer who circulated an internal memo criticizing the company’s diversity initiatives. The former employee, James Damore, argued that biological differences between men and women are responsible for tech’s gender gap.

Google said he violated company policy about promoting gender stereotypes. The company did not publicly name him, but Damore later revealed his identity to the Wall Street Journal and Bloomberg. Damore claims he has a legal right to express his views and that he’s going to fight the dismissal.

Lee Rowland, senior staff attorney at the ACLU’s Speech, Privacy, and Technology Project, joined us to talk about the role the First Amendment has in cases like these and when companies can fire you.

David Brancaccio: I know you tend to focus on public employee free speech rights. But if someone works for the private sector, help us understand what the law says about our ability to say what we want in the workplace.

Lee Rowland: Well, the law doesn’t say a lot about it. The First Amendment really only acts as a restraint on government. In fact, the first few words of the First Amendment are: Congress shall make no law restricting freedom of speech or of the press or religion. So when you work for the private sector and your employer is not the government, the Constitution gives you zero protection in terms of keeping your job based on what you say. So while it is possible that states and localities could pass laws protecting speech — and a very, very tiny number of cities and localities have done so — 99.9 percent of the time, there is no legal barrier to a private employer firing an employee because of their speech at or outside of the workplace.

Brancaccio: So if you’re signing up at a private employer and they hand you the code of conduct or the employee handbook with rules, you ought to take those seriously. 

Rowland: That’s exactly right, because they have every right to fire you should you run afoul of them. Now there is an important asterisk on this, which is employers may not use firing you because of your speech as a pretext to violate other laws that prevent discrimination. So, for example, federal laws that prevent employers from firing employees because of their religion or because of their pregnancy or their sex or their race. But, if it is solely because of their speech, there are no federal laws and no laws at the state level that I know of that give employees that kind of protection based on their speech rather than who they are.

Brancaccio: Now there is some talk in this case of the Google employee that somehow National Labor Relations Board rules might somehow apply. It’s not a unionized position as far as I’m aware. Does that inform this discussion at all?

Rowland: I should be the first to admit I’m not a labor lawyer, so there may be some obscure contractual provision that he can take refuge in, but it certainly doesn’t come from the Constitution.

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By Lata Nott, Executive Director of the First Amendment Center, and Melemaikalani Moniz, Legal Intern

April 24, 2017

SPECIFIC TOPICS IN Government employees & First Amendment :

Government Employees & Social Media

ACADEMIC FREEDOM for Public University Professors

Impact of the “Garcetti” Ruling

The First Amendment guarantees that, for the most part, the government can’t punish or limit speech.  The First Amendment does not impact the ability of private citizens and organizations to punish or limit speech.  This is why it’s permissible for a private employer to fire an employee for engaging in speech the employer disapproves of; private employers have the right to manage their employees as they see fit. (The exception to this rule is if a private employer is engaging in discriminatory employment practices, which would be a violation of the Civil Rights Act–not the First Amendment).  

The situation grows more complicated when the government is the employer.  Like any other employer, the government has a legitimate interest in maintaining efficient offices and agencies, which often requires managing and disciplining employee speech.  At the same time, it is impermissible for a government employee to have fewer free speech rights than a private citizen not employed by the government.  The law attempts to balance these two interests.

As First Amendment scholar David Hudson writes:

“More than 20 million Americans work for federal, state or local governments…While there are an infinite number of factual scenarios in which a public employee could raise a First Amendment claim, the cases tend to fall into one of several general categories:

1. A public employee is fired because of speech or expressive conduct that the employer claims is disruptive to the efficient operation of the workplace.
2. A public employee contends that he or she has suffered an adverse employment action (dismissal, demotion, etc.) in retaliation for First Amendment-protected conduct.
3. A public employee is fired because of political patronage — that is, for not belonging to his or her boss’s political party.”

Courts currently employ a three-part test to determine whether a government employee’s speech is protected by the First Amendment.

1) First of all, government employees are only protected by the First Amendment when they are speaking as private citizens. If their speech is part of their official job duties, then they can be fired or disciplined for it.

This rule comes from a 2006 Supreme Court case, Garcetti v. Ceballos. Obviously, it isn’t always easy to differentiate when a government employee is speaking as a private citizen, and when they are speaking as a government employee.

To learn more about the impact of the “Garcetti” ruling, see our collection of blog posts on the topic:

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    The Supreme Court has provided very little guidance in this area. Garcetti established that an employee’s official duties are not limited to the employee’s official job description. Thus far, the Supreme Court has only specified one situation where Garcetti does not apply: in Lane v. Franks, the Court held that an employee is not speaking pursuant to his official duties when he gives sworn testimony that is compelled by subpoena.

The Garcetti decision means that many government employees who are performing whistle-blowing functions–meaning, disclosing information about a government agency violating the law, wasting money, or abusing its authority–are not protected by the First Amendment, since reporting misconduct is often part of an employee’s official duties.  Although there are state and federal laws that are specifically meant to protect whistleblowers from being fired, demoted, or otherwise retaliated against by the agencies they work for, many have criticized the Garcetti decision for depriving most whistleblowers of First Amendment protection.

2) If a government employee was speaking as a private citizen, the next question is, was their speech regarding a matter of public concern? If they weren’t speaking on a matter of public concern, the First Amendment will not protect their speech. If they were speaking on a matter of public concern, the First Amendment might protect their speech. (There’s still a test to go after that.)

Speech is considered to regard a matter of public concern if it relates to a social, political or community issue. While speech touching on corruption or racial discrimination in a workplace tends to be viewed as relating to matters of public concern, at least one federal appeals court (the 11th Circuit) has held that speech pertaining to sexual harassment is a matter of private concern. The definition of public concern has been interpreted widely by different circuit courts, so the definition might vary depending on where the case has been brought.

The Supreme Court established this as a necessary element for a government employee’s speech to be protected by the First Amendment in Pickering v. Board of Education. In a later case, Connick v. Myers, the Supreme Court instructed that the question of whether an employee’s speech addresses a matter of public concern should be determined by looking at the content, form, and context of a given statement, as revealed by the whole record, and not by applying a common, standardized rule. The Court also said that this was a question of law, meaning that it should be left to the court to decide, not a jury.

3) If a government employee was speaking as a private citizen on a matter of public concern, the next question is whether the government employer’s interest in efficiently fulfilling its public services is greater than the employee’s interest in speaking freely.

This test was also established by the Pickering and Connick cases.  

The government employer has an interest in efficiently providing public services and maintaining good professional relationships within an office. Courts analyze the government employer’s interest by considering the following set of factors:

1. Whether the speech would interfere with the employee’s responsibilities;
2. The nature of the working relationship between the speaker and those at whom the criticism was directed;
3. Whether the relationship between the speaker and the person criticized was sufficiently close that the speech would create disharmonious relations in the workplace;
4. Whether the speech would undermine an immediate superior’s discipline over the employee; and
5. Whether the speech would compromise the loyalty and confidence required of close working employees.

When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference is given to the government employer’s judgment. After a court considers each factor, it must weigh these factors against the employee’s interest in speaking out.

Does the First Amendment protect employees?

Does the 1st Amendment prohibit a private employer from putting restrictions on what employees say or write?

Does the US Constitution protects freedom of speech in the workplace?

Does the First Amendment protect someone from termination from their job because of something they say at the workplace?