The First Amendment makes clear that all citizens have the right to speak freely, but how does this apply to public employees? The Supreme Court holds that public employees do not lose their First Amendment rights at work, but there are some restrictions that public employers can place on an employee’s speech.
Let’s take a look at the constitutional protections of public employees and a few key Supreme Court cases that define these protections.Public employees retain important constitutional protections in the workplace, and a Columbia, MO Employment Lawyer can help workers understand how First Amendment rights may apply when workplace speech leads to discipline, retaliation, or other employment disputes.
Who Are Public Employees?
Public employees are anyone who works for the municipal, county, state, or federal government in any capacity, whether that be in a government agency, entity, or department. They are paid through taxpayer funds and serve the public good. Professions include but aren’t limited to emergency responders, public school teachers and staff, university professors and staff, postal workers, city administrators, public works employees, and many more.
What Qualifies For Constitutional Protection?
Generally, your speech as a public employee is protected under the Constitution if you speak:
- about a matter of public concern,
- as a private citizen, and
- in a way that does not interfere with your job.
What Is A Matter Of Public Concern?
Matters of public concern are topics of interest to the public, whether they be social, political, or otherwise. They are not workplace grievances or internal disputes. A matter of public concern would be criticism of the president or governor, but not criticism of your boss.
In 1968, the Supreme Court ruled in Pickering v. Board of Education that a public employee has the right to speak on matters of public importance. Marvin Pickering, a public school teacher in Illinois, was fired after writing a letter to a local newspaper against decisions made by the Township Board of Education. The Illinois Supreme Court ruled against the teacher, but when the case was appealed to the U.S. Supreme Court, the decision was reversed.
What Does It Mean To Act As A Private Citizen?
To act as a private citizen is to act outside of your job parameters. Your speech is protected if it is made outside of your job duties and does not contain any confidential information. This was defined most clearly in the Supreme Court’s 2006 Garcetti v. Ceballos decision.
Richard Ceballos, a Los Angeles district attorney, claimed he suffered retaliation and was unfairly passed up for a promotion due to his criticisms of the validity of a warrant that led him to testify against the prosecutors in his own office. When the case was brought to the Supreme Court, they decided that a public employee’s speech is not protected if it is made “pursuant to their official duties”, meaning if it is made to fulfill a duty of their employment. Because Ceballos spoke out about the warrant with the prosecutors at work and not as a private citizen or publicly, his speech was not protected under the First Amendment, and he was not protected against discipline by his employers. TGH Litigation advises public employees on First Amendment and workplace retaliation issues, including situations involving protected speech, disciplinary actions, and disputes over the scope of constitutional rights in the workplace.
Additional Resources:
https://www.acludc.org/app/uploads/2025/06/free_speech_federal_employees_kyr.pdf