Free Speech in the Workplace During Election Years

By Jessica E. Schwie and Josh Devaney, Attorneys, Kennedy & Graven, Chartered

During an election season, Americans across the country honor the tradition of avoiding political discussions with certain family members. For public employers, officials and employees, however, politics in the workplace are sometimes unavoidable. Public employers face additional challenges when employees become candidates or support specific candidates.

Although private employers may fire employees for certain speech (examples and critiques of the practice abound), public employers cannot do that so easily. Public employers must ensure that their actions do not infringe on their employees’ First Amendment rights, including rights of association and speech.

Public employees have constitutional rights to engage in information sharing, questioning, providing answers and to associate with one candidate.¹ That right, however, is not without limitations.

Rather, that right is balanced against the interests of the public and the public employer in the fair, impartial, effective and efficient provision of services, particularly in the law enforcement context. As a result, public employers must utilize a balancing test to determine whether particular political activity by a public employee may be discouraged by the employer through policy or discipline.²

Determining Conduct

When setting policy and giving guidance, the first question to be addressed is whether the activity at issue is “speech.” This seemingly simple question has become increasingly more complex as social media plays a larger role in Americans’ daily lives.

In Bland v. Roberts, a deputy who “liked” the page of an unsuccessful candidate for sheriff was terminated after the election.³ The court ruled that liking a page was speech because it conveyed support or appreciation.

This ruling makes clear that speech includes a broad category of conduct. As a result, social media, text messages and emails (including emojis, liking, etc.) may be protected speech along with traditional leafletting, posters, stump speeches and signs.

The next question is whether the speech is protected. In Connick v. Myers,⁴ the U.S. Supreme Court held that for speech to receive First Amendment protection, it must be on a “matter of public concern.” Matters of public concern are those of political, social or other concern to the community.

If the speech does touch on a matter of public concern, the employer must then apply the balancing test established in Pickering v. Board of Education.⁵ Under that test, the employee’s free speech interest is weighed against the government employer’s interest in promoting an efficient and effective workplace.

An important limitation on employee speech protections is Garcetti v. Ceballos.⁶ Under Garcetti, when public employees make statements pursuant to their official duties, the First Amendment does not protect those communications from employer discipline.

The analysis differs depending on whether an employee speaks on or off duty.⁷ For off-duty speech, courts look at whether the employee spoke as a private citizen on a matter of public concern. For on-duty speech, courts ask whether the employee was speaking pursuant to official duties. If so, Garcetti removes First Amendment protection entirely.

Even when speech is protected, an employer can restrict or discipline it if the employer’s interest in preventing disruption to operations outweighs the employee’s speech interest.⁸ The disruption must be real and substantial, not merely speculative or based on hurt feelings.

The Eighth Circuit of the U.S. Court of Appeals recently reinforced this standard. In Melton v. City of Forrest City,⁹ a firefighter was terminated after reposting a politically charged image on his personal Facebook page. The Eighth Circuit reversed, finding the evidence of disruption insufficient. No co-worker refused to work with him, no training was disrupted and no service calls were affected.

The court cautioned that relying on public outcry alone risks constitutionalizing a “heckler’s veto.” Employers must show that operations were actually impaired or that disruption was specifically and reasonably predicted, not merely that the speech was controversial or generated complaints.

Complications When Employee Is a Candidate

Additional complications arise when a public employee becomes a candidate for office.¹⁰ Employers may place reasonable restrictions on employees running for office, such as requiring them to take leave, so long as those restrictions are not imposed in a viewpoint-discriminatory manner.

Public employers may also take action against employees who make false statements of fact during a campaign.¹¹ Although political hyperbole and opinion are generally protected, making knowing or reckless false statements about a political opponent may fall outside First Amendment protection.

Recent Developments: Social Media

The question of when a public official’s social media activity constitutes government action was clarified by the U.S. Supreme Court in Lindke v. Freed.¹² The Court held that a post is attributable to the government only if the official both possessed actual authority to speak on the state’s behalf and purported to exercise that authority in the specific post.

This means that a mixed-use social media account, one that blends personal commentary with official announcements, does not automatically make all posts subject to First Amendment scrutiny. Public employers must assess whether an employee’s specific post is connected to his or her official governmental role, rather than applying a blanket policy to all online activity.

Seek Advice Before Acting

Before taking any action, public employers should discuss the situation with human resources, the county attorney or labor counsel.