Saturday, October 3, 2009

Police officers and freedom of speech (part one)

State attorney and LEAP Speaker Jay Fisher has written an essay about the rights and duties of U.S. police officers who criticize the prohibition of marijuana, cocaine and other illegal substances. Part one provides a legal overview and also examines the rights of federal government employees. Part two examines free speech law in five different states: Georgia, New Hampshire, New York, Montana and Missouri.

It should come as no surprise that American law enforcement professionals who care to speak out publicly against the drug war may hesitate to do so. Such a position runs contrary to the public positions of just about every police agency. Officers may fear retaliation and possible termination for taking such a contrary view. Thus, police should have a basic understanding of what speech will be protected in the event they want to speak on this topic publicly.

The basis for all protections of speech in the United States is the First Amendment within the Bill of Rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The broad protections of this Amendment have been extended to the states via Section One of the Fourteenth Amendment to the U.S. Constitution: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

However, it is now well-established law that public employees do not enjoy the same protections that a private citizen would have when trying to speak out on certain topics (such as the drug war). The reasoning for this is sound – to promote effective delivery of services, public employers must maintain efficient operations. Conduct by employees that disrupts morale or calls into question the agency’s integrity would impinge that goal.

What emerges from the competing interests of free speech protection and public employer service delivery is the proverbial “balancing test” seen in American courts: how to account for agency interests versus the individual’s rights.

Further complicating this analysis is the federal versus state government models in the United States, and the different protections afforded citizens of different states. Two obvious implications arise from these concerns. First, the United States Supreme Court may set a limit beyond which a state cannot impinge a public employee’s free speech; however, the state may afford greater protection of public employee speech than what is permissible under federal law. Second, the states afford different levels of protection to public employee speech – what may be protected in New Hampshire, for example, is not protected in Alabama.

All these competing interests create a hodge-podge of directives which guide what public employees may or may not publicly comment on. An analysis of the fifty states’ laws on this topic plus the position of the federal government would be cumbersome and beyond the scope of this analysis. However, below are some examples which show the breadth of laws which affect public employees vis-a-vis public speech on important topics.


The most recent ruling on public employee free speech relative to public interest issues was stated in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). This case basically reaffirmed the old standards articulated in earlier decisions that the First Amendment will not insulate a public employee from discipline if he or she speaks out on an issue pursuant to his or her official duties. The Court specified that if an employee speaks not as a private citizen, then his or her speech is not protected; however, if the individual spoke as a private citizen, then the speech may be covered by the First Amendment. The Court further stated that a public employee does not speak as a private citizen on an issue of public concern when they speak pursuant to their official job duties.

Thus, the key analysis falls within the definition of “pursuant to official job duties.” While the Court did not establish any defined parameters as to speech pursuant to official job duties, it did hold that the First Amendment will offer some protection when a public employee is speaking privately about a legitimate public concern.


The federal government would address matters regarding employees who speak publicly about special interest matters under the Garcetti standard elicited above. However, it is important to recognize that Garcetti did not arise in a vacuum. That decision – and indeed the whole concept of a balancing test – arose from recent precedent. The two most important of these are Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Meyers, 461 U.S. 138 (1983).

While the details of these decisions are beyond the scope of this analysis, it is important to recognize what these decisions said to guide government employers when evaluating employee speech on public matters. If the employee is not speaking of matters specific to his or her agency, and is speaking in a private citizen's capacity, that language will be protected:
When a public employee’s speech is purely job-related, that speech will not be deemed a matter of public concern. Unless the employee is speaking as a concerned citizen, and not just as an employee, the speech does not fall under the protection of the First Amendment. Buazard v. Meredith, 172 F.3d 546, 548 (8th Cir. 1999).

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