Employee speech: What tips the balance for constitutional protection?

July 12, 2014

Employment Law BookBalancing the interests of employees on commenting on matters of public concern against the public employer’s interest in regulating the speech of its employees is rife with legal pitfalls.  Whether it is negative comments about the employer on social media, or picket activity, public employers must walk a constitutional tightrope when meting out discipline based on the speech of their employees.

Two recent decisions with different outcomes illustrate how difficult it can be for employers to navigate this legal minefield. In Lane v. Franks, 2014 WL 2765285 (U.S. June 19, 2014), the U.S. Supreme Court afforded First Amendment protection to the sworn testimony of a program director terminated shortly after testifying, under subpoena, at the corruption trials of former employees charged with mail fraud and theft in connection with a college-operated program serving underprivileged youth.

The high court determined the sworn testimony of the director at the corruption trial constituted speech as a citizen, and that the content of the speech — corruption in a public program and misuse of state funds — involved a matter of significant public concern.

The Supreme Court noted the “independent obligation, as a citizen, to speak the truth, sets sworn testimony apart from speech made purely in the capacity of an employee.” Although the high court affirmed the judgment of the 11th Circuit that qualified and official-capacity immunity insulated the college president from the retaliation claims against him in his individual and official capacities, the court majority found that the community college did not demonstrate any government interest that tipped the balance in favor of the alleged retaliatory termination of the director.

Therefore, the high court reversed in part the lower court’s ruling and remanded the matter for further proceedings consistent with its decision.

In contrast, a recent decision by the New York Court of Appeals — the state’s highest court — illustrates how health and safety considerations can trump expressive conduct usually protected by the First Amendment.

In Santer v. East Meadow Union Free School District, 2014 WL 1767705 (N.Y. May 6, 2014), several middle school teachers legally parked their cars alongside the curb in front of a local middle school and displayed picket signs in the car windows. The teachers were protesting the lack of progress in collective negotiations.

The district brought a single charge of misconduct against the teachers, alleging the picket activity created a health and safety risk because the parked cars created significant traffic congestion and caused parents to drop students off in the middle of the street.

At the ensuing arbitrations, the arbitrators found the teachers culpable for misconduct and imposed fines ranging from $500 to $1,000.

Although a trial court confirmed the award, the Appellate Division reversed, determining the danger presented by the legally parked cars did not threaten the effective operation of the school or justify the imposed discipline.

On appeal, the New York Court of Appeals agreed the teacher’s speech regarding on-going labor negotiations constituted speech subject to First Amendment protections under the first prong of the Pickering balance test.  But the state high court also determined that the manner, time, and place of the teachers’ expression caused actual disruption to the school’s operations.

The court found that this disruption outweighed the teachers’ interests in engaging in constitutionally protected speech.

Ruling that the school district satisfied its burden under Pickering, the New York high court reversed the Appellate Division’s decision in each of the cases and directed the confirmation of the arbitration awards.