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Hot Topic: First Amendment Free Speech (Wayne College): Employment and Free Speech

This guide explores and provides a starting point for your research on The First Amendment Right of Free Speech. This guide highlights free speech on college campuses, hate speech and athlete activism.

Supreme Court Cases

Pickering v. Board of Education, 391 U.S. 563 (1968) This case developed the Pickering Test for public employers. This test balances the right of the public employees to speak on matters of public concern against the employer's interest.

Garcetti v. Ceballos, 547 U.S. 410 (2006)  First Amendment protections apply only to a public official's speech in a private context rather than during the exercise of his duties.

Connick v. Myers, 461 U.S. 138 (1983) In determining a public employee's rights of free speech, the problem is to 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."

Garcetti v. Ceballos, 547 U.S. 410 (2006) First Amendment protections apply only to a public official's speech in a private context rather than during the exercise of his duties.

Givhan v. Western Line Cons. Sch. Dist., 439 U.S. 410 (1979) Teacher's private complaints to principal regarding racially disparate impact of school district policy, however intemperately expressed, were protected speech on a matter of public concern for which she could not be terminated by her public employer.

Waters v. Churchill, 511 U.S. 661 (1994) Where public employer has reasonable belief that speech by employee on matter of public concern could reasonably disrupt employer's operations, employee's First Amendment rights are not violated by adverse action and trial of fact is not necessary to determine actual content of speech.

Private or Public Employment

Private Employers

  • Private employee speech is not protected by the first Amendment unless:
    • Employees’ protected speech under the National Labor Relations Act (NLRA) is actually an exception to an employer’s broad rights to restrict both speech and expression at work.  Section 7 of the NLRA gives employees the right to discuss wages, hours and working conditions and organizing a union.
    • Employers violated the civil liberties of the employee based on religion or sex.

Public Employers

  •  The Pickering-Connick Test determines if a public employer speech is protected
    • (1) whether the subject of the employee's speech was a matter of public concern and (2) whether the employee spoke 'as a citizen' rather than solely as an employee.

 

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