Employer imposed restraints on employee First Amendment rights

In Connick v Myers, 461 US 138, the U.S. Supreme Court said that federal courts will consider retaliation allegations based on an employee's claim of free speech where the speech concerns matters of public concern in contrast to speech involving “only matters of a personal interest” to the employee.

In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [see Matter of Pickering, 391 US at 568]. The Pickering balancing test, however, applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest."

A second test that must be met by a public employee claiming that his or her employer's action violates his or her right to free speech: Did the employee's statement outweigh the employer's interest in terminating or otherwise disciplining an employee whose conduct “hinder effective and efficient fulfillment of its responsibilities to the public?”

In Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, New York State's Court of Appeals held that a public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large, explaining “that viewing the [Santer] record evidence in light of established federal precedent … the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations,” at a school. A summary of the Santer ruling is posted on the Internet at http://publicpersonnellaw.blogspot.com/2014/05/a-public-employer-may-impose-restraints.html .

Other decisions in which a public employee's right to free speech was considered include Tytor v Laramie County School District, USCA 10th Circuit [unpublished]; Jeffries v Harleston, CA2, 52 F3d 9; and Barnard v Jackson County, CA8, 43 F3d 1218.