The First Amendment guarantees freedom of speech, religion, press, assembly and petition. Does that guarantee protect you from losing your job due to engaging in First Amendment activities? It depends on your employer.
Public employees do not give up First Amendment rights to free speech simply because they work for the government. Public employees have a right to speak out on important issues of public concern, balanced with an employer’s interest in promoting an effective and efficient workplace.
Who is a Public Employee?
A person is considered a public employee if they work for any federal, state, or local government entity, agency or department. Additionally, teachers and other staff working for public school districts and public colleges and universities are public employees.
What speech is protected?
The Supreme Court took up this issue in 1968, in the landmark case Pickering v. Board of Education. Specifically, the Court stated that “the threat of dismissal from public employment…is a potent means of inhibiting speech.” In this case, the Court ruled that a public high school violated free speech protections of a teacher when they discharged him for writing a letter to an editor criticizing school board officials.
Under the Pickering-Connick test, created by the Supreme Court to determine whether a public employee’s speech is protected under the First Amendment, an employee must satisfy threshold requirements. Generally, a public employee’s speech is protected if you are speaking as a private citizen, about a matter of public concern, and your speech does not interfere with your job. However, there are exceptions.
What does it mean to speak as a private citizen?
The public employee must be speaking as a citizen, not as an employee performing their job. For example, in Garcetti v. Ceballos, decided in 2006, the Court held that a district attorney, who wrote a memo as part of their job duties questioning the validity of a search warrant was speech made in pursuant to official duties. Therefore, that speech was not protected by the First Amendment. This holding highlights the interest of the government, as an employer, to control its operations and ensure efficiency. To summarize, public employees must speak as citizens, not as employees.
What is a public concern?
The Supreme Court, in Connick v. Meyers, explained that a public concern is anything that relates to a matter of political, social, or other concern to the community. This is decided based on the “content, form, and context of a given statement.” For example, speech about government policies and activities is likely to be categorized as a matter of public concern. A way to differentiate private vs. public is whether the speech is about a purely private workplace issue, that would be important only to the employee or those in the office compared to government functions like waste and fraud.
What about Private Employees?
Private sector employees do not have First Amendment protections in the workplace. Since private employers are not government actors, they can generally restrict speech without violating the Constitution.
Especially if you are an at-will employee, as the majority of private sector employees are, you can be fired for expressing political views your employer disagrees with. Further, you can face discipline for social media posts that reflect poorly on the company.
However, other laws may offer limited protections: National Labor Relations Act (NLRA) protects speech about wages and working conditions; Whistleblower laws protect employees who report illegal or unethical behavior; and Anti-discrimination laws prohibit retaliation for complaints about harassment or bias regarding a protected class. Important to note, these are statutory protections, not constitutional ones.
The important distinction.
The difference in First Amendment protections reflects the unique role of government in society. When the government is your employer, it must balance its interest in workplace efficiency with its obligation to uphold constitutional rights. When a private company is your employer, it has broader discretion to regulate speech.
This distinction has real-world consequences. Public employees may challenge disciplinary actions in court under constitutional grounds. Private employees must rely on contracts, company policies, or statutory protections.
The First Amendment is a powerful tool—but only in the right context. For public employees, it can be a shield against retaliation for speaking out on important issues. For private employees, it’s a reminder that constitutional rights don’t always follow you into the workplace.
If you’re unsure about your rights, especially in a workplace dispute, reach out to us and schedule a consultation. Understanding the boundaries of free speech at work is essential in today’s politically charged and digitally connected world.