The following article was published in the New Jersey State Bar Association’s publication New Jersey Labor and Employment Law Quarterly Vol. 39, No. 2 April 2018

Caveat Orator’—Public Sector Employees Must Know the Limits of Their First Amendment Rights or Risk Discipline or Termination

by Matthew J. Giacobbe

The First Amendment to the United States Constitution provides that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”1 Many public sector employees believe—albeit incorrectly—that they possess an absolute First Amendment right that does not restrict what they say publicly and/or post on the Internet, especially if it occurs outside of the workplace. While public sector employees possess First Amendment rights—like all United States citizens—if the public sector employee makes an inappropriate statement that relates to his or her position, the employee could forfeit his or her employment.

Overview

Although public employees are entitled to First Amendment speech protections, this privilege is not absolute given the nature of their public service. First Amendment protection for matters of public concern applies only to private speech as opposed to speech made pursuant to an employee’s “official duties.”2 Further, public employers may still place some restrictions on private speech by public employees in circumstances where “the interest of the State, as an employer, in promoting the efficiency of the public services it performs” outweighs the “interests of the [public employee], as a citizen, in commenting upon matters of public concern.”3

“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”4 Whether a public employee’s speech was made pursuant to his or her official duties is a mixed question of fact and law.5 As such, courts must determine “whether the speech fell within the individual’s job duties, whether it related to special knowledge or experience acquired on the job, whether it was made inside or outside the work place, and whether it concerned the job’s subject matter.”6

Evolution of Case Law

In the seminal case of Pickering v. Board of Education,7 the United States Supreme Court addressed the free speech rights of a public sector employee. Specifically, a teacher, Marvin L. Pickering, wrote a letter to the editor of a local newspaper that was critical of his employer— the board of education and superintendent—in their handling of bond referendums to erect two new schools and the resultant tax increases.8 In the letter to the editor, Pickering stated, “As I see it, the bond issue is a fight between the Board of Education that is trying to push tax-supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don’t know whom to trust with any more tax money.”9 As a result of his letter to the editor, the board of education terminated Pickering, alleging the letter contained numerous statements that were false and that “unjustifiably impugned the ‘motives, honesty, integrity, truthfulness, responsibility and competence’” of both the board and the school administration.10

Ultimately, the United States Supreme Court granted certiorari and issued an opinion “to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon 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.”11 The Supreme Court held that “absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant’s letter…his dismissal for writing it cannot be upheld.…”12 Thus, in Pickering, the United States Supreme Court established a balancing test to determine whether the public employee is regarded “as a member of the general public” and afforded First Amendment protection.

Almost 40 years later, the Supreme Court, in Garcetti v. Ceballos,13 revisited the issue and greatly narrowed public employees’ First Amendment rights. In Garcetti, Ceballos was a supervising deputy district attorney who was asked by defense counsel to review a case in which the defense claimed the police affidavit utilized to obtain a search warrant was factually inaccurate.14 Ceballos concluded the affidavit did make serious misrepresentations and related his findings to a supervisor and followed up with a memorandum recommending dismissal of the charges.15 Ceballos’ supervisors nevertheless decided to proceed with the prosecution, over his objections. At a hearing on a defense motion to challenge the warrant, Ceballos recounted his personal observations about the validity of the affidavit, but the trial court rejected his challenge.16 Thereafter, Ceballos claimed he was subjected to a series of retaliatory employment actions, including reassignment, transfer and denial of a promotion.17 Ultimately, Ceballos filed suit under 42 U.S.C. § 1983, alleging his First and 14^th Amendment rights were violated in retaliation for his memo critical of the affidavit.18

In its decision, the Supreme Court noted that “[u]nderlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’”19 Ultimately, the United States Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”20

Against this backdrop, there are a number of cases decided by the United States Court of Appeals for the Third Circuit and New Jersey state courts that address public employees’ free speech rights. For example, in Foraker v. Chaffinch, two Delaware state troopers who were instructors in the Delaware State Police Firearms Training Unit raised First Amendment claims arising from their assignment to an indoor firing range.21 During their assignment, they made various complaints concerning the safety of the firing range related to its ventilation, heating, air conditioning, and alleged contamination of officers and students.22 The state auditor interviewed various individuals, including the two troopers, concerning the closing of the firing range.23 After the auditor’s interview of the two troopers, their attorney read their statements verbatim to a local newspaper. 24 As state troopers, they were not permitted to speak to the press without the approval of their superior officers.25 As a result, the troopers were placed on light duty and had to undergo fitness for duty examinations.26

Thereafter, the two state troopers filed a lawsuit under 42 U.S.C. § 1983, alleging that “their speech up the chain of command and to the State Auditor was protected by the First Amendment because it exposed serious health and safety concerns and exposed government incompetence and wrongdoing.”27 The United States Court of Appeals for the Third Circuit held that their speech was not protected by the First Amendment:

The holding in Garcetti controls our analysis of the First Amendment speech claims. Under the rule established in Garcetti, [the two troopers] spoke out about the maintenance of the bullet trap “pursuant to their official duties.” First Amendment protection extends to government employees speaking as citizens, but it does not extend to workers who speak in the course of fulfilling their employment responsibilities.28

In 2008, the Third Circuit again addressed the First Amendment in public sector employment in Kougher v. Burd.29 In that case, a Pennsylvania state dog warden who worked for the Bureau of Dog Law Protection issued animal cruelty citations against the owner of a private kennel.30 The bureau directed the warden to withdraw the citations against the kennel because he lacked the proper authority to file such charges.31 Despite the bureau’s directive, the warden refiled the charges against the private kennel owner and spoke to a local newspaper “regarding the Bureau’s ongoing investigation of the [private] kennel, in spite of a policy that dog wardens refer all media inquiries to the Department’s Press Office.”32 Ultimately, the warden was issued a one-day suspension, in part due to his unauthorized communication with the press about a pending investigation.33

The Third Circuit noted that in order for a public employee to have a First Amendment claim, the public employee must allege: “(1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action.”34 The Third Circuit explained that the first factor is a question of law, and the second is a question of fact.35

The Third Circuit ruled against the warden, holding that a public employee’s statement is protected activity under the First Amendment when: “(1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made.”36 The Third Circuit reiterated that when a public employee makes a statement pursuant to his or her official duties, he or she does not speak “‘as a citizen’” and is, therefore, not protected by the First Amendment.37

Similarly, New Jersey courts have applied the Garcetti analysis. In 2013, In the Matter of O’Brien, the Appellate Division reviewed tenure charges in which the Office of Administrative Law and the Paterson School District dismissed a first grade teacher for inappropriate postings on Facebook.38 O’Brien had posted two statements on her personal Facebook page, which read as follows: “I’m not a teacher—I’m a warden for future criminals!” and a second statement, which read, “They had a scared straight program in school—why couldn’t [I] bring [first] graders?”39 In seeking to overturn her dismissal from the public school, O’Brien argued that her Facebook postings were protected by the First Amendment, and, therefore, she could not be disciplined or discharged for having posted those statements.40

The Appellate Division noted that in order to determine whether a public employee’s statements are protected by the First Amendment, the court must balance the employee’s interest as a citizen in commenting upon matters of public concern and the state’s interest, as an employer, in promoting the efficiency of the public services it performs though its employees.41 The Appellate Division denied O’Brien’s appeal and affirmed the administrative law judge’s findings that “O’Brien’s remarks were not addressing a matter of public concern, but were ‘a personal expression’ of dissatisfaction with her job.”42 As a result of the ruling, O’Brien lost her tenured position as a public school teacher in New Jersey.43

In Houston v. the Township of Randolph, a volunteer firefighter made critical comments concerning his department to various individuals.44 Specifically, Houston expressed his disagreement with the fire chief to firefighters in other departments, neighbors, family members and members of his own fire company.45 His lawsuit alleged he was constructively suspended for his comments, in violation of his First Amendment rights.46 The New Jersey District Court found that a volunteer firefighter is equivalent to a public employee.47 Ultimately, the court ruled against the volunteer firefighter’s First Amendment claims, noting that limitations may be placed on the speech of public employees as employees:

The Supreme Court has clearly stated the reasons for limiting First Amendment protection in the public employee context: first, a citizen in government service accepts certain restrictions on his freedom; second, the government, like any employer, must exercise some control over employees’ words and actions; and third, a public employee is in a position of public trust, and cannot be permitted to express views that “contravene governmental policies or impair the proper performance of governmental functions.”48

More recently, in De Ritis v. McGarrigle, the Third Circuit adjudicated a Pennsylvania assistant public defender’s First Amendment retaliation claim under 42 U.S.C. § 1983.49 Specifically, De Ritis, the assistant public defender, claimed he was transferred and denied assignments because he complained to various attorneys and state court judges that he was bringing too many cases to trial and not obtaining guilty pleas from criminal defendants.50 When confronted by his supervisor, De Ritis admitted he had advised state court judges that he was “being punished for taking too many cases to trial.”51 As a result, De Ritis was terminated from his employment.52

The district court denied the defendant’s motion for summary judgment on De Ritis’s First Amendment retaliation claim, in part because De Ritis was acting as a private citizen when he made his complaints.53 The court stated the defendants did not establish that De Ritis’s speech fell within the scope of his routine job responsibilities, or that his job compelled him to provide this information.54 As such, his speech was protected because it was made as a private citizen and not pursuant to his official duties.55

On appeal, however, the U.S. Court of Appeals for the Third Circuit held that De Ritis did not engage in protected speech. The Third Circuit explained that “the line between citizen speech and employee speech varies with each case’s circumstances.”56 In this case, even though his comments were not made pursuant to a formal job description, the Third Circuit interpreted his job duties, as a public defender, to include “‘build[ing] rapport with the Court’ and other Attorneys.”57 As such, even “idle chatter,” which was not “on the record” was still considered “official communications” with “[o]fficial consequences.”58 Since his complaints and comments were made as an employee and were not considered speech as a private citizen, the comments were not protected.59 Therefore, the Third Circuit reversed denial of the defendant’s motion for summary judgment and remanded for entry of judgment in the defendant’s favor.60

Conclusion

Based on the United States Supreme Court’s pronouncement in Garcetti, public sector employees must exercise great caution when making public statements or posting to social media sites if these comments in any way involve the public employee’s position. In each of the cases cited above, public sector employees were either disciplined or terminated because they made statements and/or social media postings that involved their public employment. Due to the fact that these employees were not speaking as ‘citizens,’ but as public sector employees in connection with their positions, they were not entitled to First Amendment protection.

Accordingly, public sector employees must be cognizant that First Amendment protections have been greatly narrowed by Garcetti and its progeny. While public sector employees have a First Amendment right to express their opinions, if those opinions involve their position, they may well forfeit their employment.