Government Employee’s First Amendment Right to Free Speech Involving Their Employment Must Give Rise to a “Public Concern” in Order to be Protected

May 19, 2005

The First Amendment of the United States Constitution provides that “Congress shall make no law … abridging the freedom of speech.” Inherent in the right of free speech is the right to criticize the government for the actions that effect its citizens. But what if you work for the government? Is public criticism of a governmental official, who is also your boss, protected speech under the First Amendment?
In a recent case before the 7th Circuit Court of Appeals captioned Brooks v. University of Wisconsin Board of Regents, the Court heard a dispute after the University of Wisconsin Medical School closed a clinic devoted to the research and treatment of Multiple Sclerosis and Amyotrophic Lateral Sclerosis. The plaintiffs, the clinic’s founder and two employees, sued the University, and claimed that the School closed the clinic because they spoke out against certain actions taken by the chairman of the neurology department. The plaintiffs’ claims rested on a theory that the plaintiffs had the First Amendment right to talk about their clinic, and that right was breached when the University closed the clinic based on those comments.
The general rule is that “a government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment.” Nevertheless, the government as an employer has an interest in conducting its operations as effectively as possible. Thus, public employees do not have an unfettered right to express themselves on matters related to their jobs, and courts must give due weight to the government’s interest in efficient employment decision making when evaluating retaliation claims.
To establish a claim premised on First Amendment retaliation, a plaintiff must establish that the speech in question is constitutionally protected and that it was a substantial, or motivating factor in the employer’s retaliatory actions. Courts apply a two-step analysis to determine whether speech is constitutionally protected. First, the court must decide whether the plaintiffs engaged in speech that addressed a matter of public concern. In making this determination, the Court must examine the content, form, and context of a statement that is revealed by the entire record. Moreover, the First Amendment is implicated when a public employee speaks as a citizen upon a matter of public concern, but not as an employee upon matters only of personal interest. Second, if the plaintiffs spoke on matters of public concern, the Court then attempts to balance their interest in expression against the employer s interest in promoting effective and efficient public service.
In this case, the Court found that the plaintiffs failed to explain how the litigation impacted the public. The Court explained:

One fundamental problem is that the plaintiffs failed to provide specifics regarding what they said. Instead, they gave only vague description of their speech. We know that they engaged in criticism and “opposed,” “expressed concern,” “addressed,” and “spoke out against” various school decisions. But what exactly did they say? Did they specifically discuss issues of importance to the public? We cannot tell, which is fatal to their claims arising from their criticism of [the chairman of the neurology department] and of school decisions.

The Court went on to find that the case involved a power struggle over how the department should be run, not over the actual treatment of patients. As such, the matter was not a public concern.
The dissenting Judge argued that the matters were of public concern. The fact that the plaintiffs have a personal interest in preserving a substantial treatment facility for patients with neurological diseases and in an important neurological research and patient care programs is not a basis to deny that the maintenance of these facilities and programs are matters of clear concern to the public. A personal motive reinforcing a plea to preserve medical research and treatment activities that serve patients and contribute research at a publicly supported medical school detracts nothing from the public character of these activities. The dissent concluded that alleged conflicts of interest and cuts in funding for medical research and patient care at a publicly funded medical school are matters “of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal.” If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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