One would be hard pressed to find someone who does not know that we are afforded free speech under the First Amendment of the United States Constitution. Similarly, we are also afforded the same right under the Texas Constitution Article 1 Section 8. Indeed, there are very few rights that are as well-known as the right to free speech, yet, the implications or effects that this fundamental right has in our workplace are often misunderstood and overestimated. My goal is to help clarify or shed light on a few misconceptions that I often see in my day to day practice.

First Misconception: Freedom of Speech Covers All Employees

Freedom of speech only protects us from government censorship. What this means for employees is that unless you are employed by the government, you are not afforded free speech protections under either the First Amendment or the Texas Constitution. Put another way, employees who are employed by a private company are not afforded free speech protections. This means that unless your speech is protected by another law, you can be fired for what you say in the workplace regardless if it is otherwise protected under the First Amendment of the Texas Constitution. This is probably the biggest misconception that exists that surround one’s freedom of speech.

Employees who are protected by the First Amendment and the Texas Constitution are federal employees and state employees. Additionally, employees of local governmental agencies like county and city employees are covered as well. Determining whether you are covered under the First Amendment or the Texas Constitution is the crucial first step in knowing your rights.

Second Misconception: Freedom of Speech Protects All Types of Speech in the Workplace

The second misconception is that freedom of speech protects anything you say in the workplace. After a string of decisions from the United States Supreme Court, it is crucial for speech to be a matter of “public concern” for it to be afforded any type of protection under the First Amendment or the Texas Constitution.

Unfortunately, what constitutes a matter of “public concerns” is a rather fact intensive question in which often times there is no clear answer. Indeed, courts generally look at the content, form, and context of a statement to determine if the speech is a matter of public concern. Generally speaking though, purely internal employee grievances, obscenities, and fighting words are not considered matters of public concerns. On the other hand, testifying in court or before the legislature, raising concerns about government inefficiencies and wasteful spending, complaining about policies that put the health and safety of the public at risk, and complaints of race discrimination have been found to be matters of public concern in many situations.

Ultimately, since this inquiry requires a fact intensive inquiry, that requires an experienced employment attorney’s assessment.

Third Misconception: My Speech is Protected Even if the Speech is Part of my Job Duties.

This third misconception that is probably even murkier than the second misconception. In short, in order to be protected by the First Amendment and the Texas Constitution, you must be acting as a “private citizen.” This means that your speech cannot be in the scope of your duties. For example, if your job was to notify your supervisor of safety concerns, your statements to your supervisor about safety concerns are most likely not protected speech since that is part of your job.

But this restriction unfortunately goes further. Things like using work stationary, your work email, following the chain of command, engaging in speech during office hours, and other similar factors weigh in favor of denying employees protection under the law.

As it stands now, if you are planning on engaging in protected speech my suggestions would be to attempt to distance yourself from your employer as much as possible. Engage in the speech outside of office hours, do not use your work email or stationery, and make sure to stress and highlight the fact that you are speaking as a concerned citizen and not as a representative of your employer. While these actions to not guarantee that a court will find that you were acting as a private citizen, they do weigh in favor of such a finding.

Conclusion

As can be seen from the above, determining whether or not your speech is protected or not is not always easy. In fact, it can be a rather nebulous area filled with trap doors and pitfalls. Especially since the majority of these rules have been created by judges from around the country. That is why it is important to get an opinion from an attorney that is experienced in employment law. The first step to a more equitable workplace is knowing your rights. Contact a Texas Employment Attorney today to set up a consultation.

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Photo of Jairo N. Castellanos Jairo N. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos carries.

1. Why did you start practicing labor and employment law?

I think labor and employment law is a fascinating part of the law that impacts everyone. Most people spend nearly as much time at work as they do with their family.

2. Who is your favorite Supreme Court Justice?

My favorite sitting justice is Justice Sonia Sotomayor.

3. What skills do you value as an employment attorney?

I think an important skill to have as an employment attorney is the ability to tell people’s stories. It is important to be able to effectively convey entirety of the case beyond the legal aspects of it.

4. What do you do when you’re not practicing law?

I like to read fiction and spend time with my daughter.

5. What’s your favorite legal movie

That is a toss-up between A Civil Action and My Cousin Vinny.

6. What’s your favorite legal TV show

Always Sunny in Philadelphia when they are discussing bird law.

7. Have you ever learned something from one of your clients?

I’ve learned that there is no one size fits all solution to dealing with issues. Much like there is no one size fits all way of approaching a problem.

8. If you could argue any case in history, what would it be?

Brown v. Board of Education of Topeka.

9. What do you most want your clients to know about you?

That in me they can find someone that will fight his hardest for them regardless of the outcome.

10. Who’s your favorite judge?

Former Chief Justice John Marshall

Jairo N. Castellanos is a Trial Attorney in the Austin office of Rob Wiley, P.C.  He graduated from The University of Nevada in Las Vegas with a bachelor’s degree in 2009.  Mr. Castellanos then graduated from The University of Texas School of Law in 2015. Mr. Castellanos is fluent in English and Spanish.