The Bill of Rights and the 14th Amendment

First Amendment

What is the level of free speech protection for public employees?

Public employees have First Amendment rights but they are limited by the employment relationship. In one decision, Garcetti v. Ceballos (2006; see LegalSpeak, p. 54), the U.S. Supreme Court ruled that public employees do not have free-speech protection for speech made pursuant to their official job duties. However, if a citizen speaks more as a citizen than an employee, the courts will apply a two-part test from Pickering v. Board of Education (1968) and Connick v. Myers (1983). That test asks: (1) Did the employee’s speech touch on matters of public concern or importance; and (2) does the employee’s right to free speech trump the employer’s right to an efficient, disruptive-free workplace.

A problem in this area is that it is unclear when an employee is speaking pursuant to their official job duties. Sometimes a public employee may speak both as an employee and as a concerned citizen. Many courts look to the “core functions” of an employee’s job and try to determine whether the speech is required by the job.

Do young students have the same rights to free speech as adults? Recent Supreme Court decisions have held that they do not (iStock).

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