“People demand freedom of speech as a compensation for the freedom of thought which they seldom use.”
- Soren Kierkegaard
Because of their training and, in many cases, overly restrictive internal policies imposed by their employers, many law enforcement officers wrongfully believe that they cannot exercise their constitutional right of free speech at all. Law enforcement officers have freedom of speech rights. However, as the great Danish philosopher observed long ago, it is important that law enforcement officers think first, and then speak.
The protections of the Free Speech Clause of the First Amendment extend to all citizens. The First Amendment has been made applicable to the states by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Yet, government employees, including law enforcement officers, do not enjoy the same freedom of speech as members of the general public. Government has a special authority to proscribe speech of its employees. Id. Government “may impose restraints on the job-related speech of public employees that would plainly be unconstitutional if applied to the public at large.” United States v. NTEU, 531 U.S. 454 (1995).
Public employers have legitimate concerns regarding unauthorized employee communications with the press based upon interests such as: (1) the need to maintain discipline or harmony among co-workers; (2) the need for confidentiality; (3) the need to limit conduct that impedes the public employee’s proper and competent performance of his duties; and (4) the need to encourage close and personal relationships between employees and their superiors. However, neither the federal government, nor any municipal, county or state agency can impose an employment regulation, policy or procedure that places an unjustifiable prior restraint on the freedom of speech of law enforcement officers.
A citizen’s interest in commenting on matters of public concern go to the core of freedoms protected by the First Amendment. Roth v. United States, 354 U.S 476 (1957). Thus, even public employees do not relinquish their First Amendment rights just by accepting public employment. As the U.S. Supreme Court ruled: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Such injury may arise where free speech is “either threatened or in fact being impaired at the time the relief [is] sought.” Id.
Speech on public issues has traditionally occupied “the highest rung of the hierarchy of First Amendment values.” Connick v. Myers, 461 U.S. 138, 145 (1983). Speech relating to public concerns is to be contrasted with speech as an employee upon matters only of personal interest. Id. at 147. Only when the speech is determined to be of “public concern” and, therefore, constitutionally protected, will a court engage in balancing and inquire into whether the interests of the employees and the public, on the one hand, are outweighed by those of the government, on the other. Pickering v. Bd. of Education, 391 U.S. 563, 568 (1968). If the alleged speech does not involve a matter of public concern, the First Amendment does not protect the employee from employer discipline or permit the constitutionalization of otherwise private grievances. Garcetti v. Ceballos, 547 U.S. 401, 418 (2006).
“A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” Garcetti, supra, at 418. If a public interest or concern is established, then a court must balance the employee’s interest in free speech against the “government’s interest in the effective and efficient fulfillment of its responsibilities to the public.” Connick, supra, at 150.
A government agency has a heavy burden of proof when an internal policy applies to a broad category of speech applicable to a large number of employees, rather than a more narrow restriction taken in the context of discipline, i.e., a ban that “chills potential speech before it happens.” NTEU, supra. When such a regulation is challenged, “[t]he government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the government.” NTEU, citing Pickering at 571.
When presented with alleged restrictions on the free speech of public employees, courts must “arrive at a balance between the interests of the [employee] as a citizen, in commenting on 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.” Pickering, supra. In balancing these interests in this context, courts must consider not only the content of the speech, but also the “manner, time, and place in which it is delivered.” Connick, supra, at 152.
In evaluating the content of the disputed speech, courts have recognized that certain subjects, such as racial discrimination, are inherently of public concern. Rode v. Dellarciprete, 845 F.2d 1195 (3rd Cir. 1988). “Vigilance is necessary to ensure that public employers do not use their power over employees to silence discourse, “not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” Id.
Many members of the professional want to speak out about issues and problems that they confront on a daily basis. However, the determination of whether free speech is protected under the First Amendment or, instead, a violation of an employer’s internal policy is often difficult even for experienced constitutional lawyers. Therefore, in order to avoid potentially serious disciplinary action, law enforcement officers should contact an attorney. By exercising some initial thought and self-restraint before publicly commenting on an issue, law enforcement officers can potentially avoid serious negative employment consequences.