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Can Government Employees Criticize the Government?

They have fewer free-speech rights than private workers, but what counts as a fireable offense is debatable.

U.S. Environmental Protection Agency employees gathered in Chicago to protest the nomination of Scott Pruitt for administrator.
(AP/Carla K. Johnson)
Can government employees be legally fired for criticizing the government?

It’s a question that many federal workers are asking as they look for ways to express opposition to their new boss but keep their jobs. During the presidential campaign last year, one survey found that 95 percent of federal workers’ donations went to Hillary Clinton. Now they find themselves working for President Donald Trump, the candidate they tried to beat.

Some are attending workshops. Others are refusing to implement orders they don’t agree with. Many are airing their grievances in public and on social media. 

This kind of uncertainty isn’t limited to federal employees. People on state and local payrolls struggle with similar issues all the time. In fact, the dilemma is so complicated that the U.S. Supreme Court has revisited the debate several times -- most notably in 1968 and again in 2006.

The first case, Pickering v. the Board of Education, involved a teacher who had been fired after writing a critical letter about school funding to the local newspaper. The justices sided with the teacher. Public servants, they ruled, may not "be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest."

But nearly 40 years later, in Garcetti v. Ceballos, the court concluded that a government employee "must accept certain limitations on his or her freedom."

Courts draw a clear distinction, however, between speech expressed on the job and speech that relates to the job but is made as a private citizen. When it comes to comments made on the clock, states and localities can set pretty much any restrictions they want. They can, for example, ban employees from revealing internal information about their employers and complaining about supervisors in a way that sheds negative light on their departments.

“Government agencies want to control employees’ speech. They don’t want anything said to come back in a way that would embarrass the agency. And the courts have given governments some ability to do that,” says David Cuillier, director of the school of journalism at the University of Arizona. 

Things get fuzzier, though, when it comes to off-the-clock conversations, especially on social media. 

Government personnel have the freedom to say what they want in their personal lives and on social media -- but only, according to Pickering and other court cases, if it doesn’t hurt the government’s performance or damage its public perception.

Public employees also enjoy more protection when discussing topics that have little to do with their actual job duties, according to Esha Bhandari, a staff attorney who writes for the American Civil Liberties Union blog. If someone in the health department wants to disparage the corrections agency, their job is safer than a corrections officer doing the same thing.

“These are general rules, and there are exceptions, such as when an employee’s speech causes disruption to the workplace,” wrote Bhandari. “But properly construed, any exceptions should apply only in those cases where the government’s interest in carrying out its duties is truly impaired by what an employee has said.”

One of the most recent court cases on this issue backs up Bhandari’s assertion.

In 2013, after a couple of police officers in Virginia complained on Facebook about having rookies in specialty units and as field training officers, they were penalized and held back from promotions. A lawsuit ensued, and the department prevailed at lower levels. 

But in December 2016, the 4th Circuit Court of Appeals -- which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia -- ended up largely favoring the officers and protecting their right to speak out against their department. The judges wrote that “the Department fails to satisfy its burden of demonstrating actual disruption of the mission. … the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern.” 

Ultimately, it’s an uncertain world for public-sector employees and employers. As Jill Gerdrum, an employment attorney with Axilon Law Group, says, “Employers need to step back and view each case individually. It’s time-consuming, but the way the law is, we have to evaluate what the speech is and balance whether or not it has an adverse effect on the workplace.” 

Caroline Cournoyer is GOVERNING's senior web editor.
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