Although employers have tried to limit the rights of public employees and
specifically police officers, courts have held that police officers are largely
but not completely free to express their views.
In a recent case regarding the free speech rights of public employees, the
Supreme Court struck down legislation prohibiting federal employees from
accepting honoraria for a wide range of expressive activity including speeches
and nonfiction articles01.
The court held that a government bears a much heavier
It is difficult to predict whether or not speech will be protected under the
Constitution. Courts can easily decide the case and then weigh the factors to
come out in support of that decision because they use the
Rendish v. City of
Following these assertions, the Ninth Circuit held that the Connick balancing
test for public employees did apply to litigation. It noted other circuits that
had reached the same conclusion. The Second, Fifth, Sixth, Seventh, and Tenth
Circuits have all held that the protection afforded by the Petition Clause of
the First Amendment is subject to the same analysis as free speech. See id. at
1222. Only the Third Circuit has found that a public employee is protected for
filing a lawsuit “even if that lawsuit addresses matters of purely private
concern. See id. (Quoting San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir.
1994)).
In Rendish even though the plaintiff’s litigation involved matters of public
concern, her interests did not outweigh the City’s interest in preventing
disruption to its effective performance of services to the public.
Consequently, the Court found that her likelihood of success was not strong,
and denied the plaintiff’s motion for a preliminary injunction.
There are also several types of speech that generally have not been
protected.
01 See US v. National Treasury Employees Union, 513
02 See Aitchison, supra note 21, at 170 (citing
Clemons v.
03 See
04 See
05 See
06 See
07 See
08 See
09 See
10 See
11 See Leonard v. City of
12 SeeMcKinley v. City of
13 SeeAitchison, supra note 21, at 175-76 (listing
Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland,
Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Oregon,
Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Washington, West
Virginia, Wisconsin).
14 See
15 See Berger v. Battaglia, 779 F.2d 992, 993 (4th Cir.
1985), cert. denied, 476
16 See Eiland v. City of
17 See Tindle v. Caudell, 56 F.3d 966, 971 (8th Cir.
1995) (citing Pruitt v. Howard County Sheriff’s Dept., 623 A.2d 696, cert.
denied, 630 A.2d 723 (1993)).
18 SeePruitt, 623 A.2d at 701-02.
19 See
20 See Hughes v. Whitmer, 714 F.2d 1407 (8th Cir. 1983).
21 See McMurphy v. City of
22 See McMullen v.
23 See Tindell v. Caudell, 56 F.3d 966 (1995).
24 See
25 See
26 See Aitchison, supra note 21, at 179.
27 See
28 See Water v. Chaffin, 684 F.2d 833 (1982) (holding
that calling the police chief a “son of a bitch" to a friend is
protected). More than one court has questioned the holding that profanity and
name-calling is protected speech if it occurs while off-duty, out of uniform
and to a friend. See e.g., Vinci v. Nebraska Department of Correctional Services,
571 N.W.2d 53 (
29 See Bryson v. City of
Over my years as a local Lodge President, the issue
of whether I could speak publicly on a given issue without being subject to
disciplinary action occasionally arose. More often, a member would come to me
with an issue where he or she was facing disciplinary action for something the
member had said or written. How much "freedom of speech" does a
police officer/employee have as it relates to his or her work place? What are
the issues involved in an employee representative's ability to voice the
concerns of members?
As with most issues worth discussion, there are competing interests. There is
the interest of employees having a right to free speech. There is also an
interest on the part of employers to be able to run their operations
efficiently and effectively, without undue interference or disruption. To
balance these sometimes competing interests, the courts generally protect that
employee's speech which can be shown to address concerns of legitimate public
interests. A police officer may well have a "constitutional right to free
speech." However, that same officer does not necessarily have a
constitutional right to be a police officer of a particular department while he
or she exercises that right, if such speech hinders the effectiveness or
efficiency of the police operation and serves no public interest. The courts do
recognize that public employers, as employers, have an interest in regulating
the speech of their employees that differs significantly from its interests in
regulating the speech of the average citizen. Added to these interests, law
enforcement agencies also have an interest in the need for discipline in the
paramilitary organizational structure.
However, even recognizing these employer interests, the courts have generally
protected the rights of officers to express their views, in public or private,
orally or in writing. According to Will Aitchison in his text "The Rights
of Law Enforcement Officers," the important case controlling the right of
free speech on the part of public employees is a U.S. Supreme Court case,
Pickering v. Board of Education, 391 U.S. 563 (1967). In this case, a school
teacher had been fired for writing a letter to a local newspaper critical of
his school board's policies. Initially, the Illinois Supreme Court upheld the
firing on the premise that by accepting the teaching position,
Therefore, if you find yourself, or another member, being disciplined for
something you have said or written, to decide if your statements are protected
speech, you must determine that:
Being an employee representative may also give you
a bit more latitude in your exercise of free speech. However, being a Lodge
leader does not give you or your statements blanket immunity. One should look
at existing local laws as they pertain to the recognition of employee
representatives and seek good legal counsel before taking on an issue of a
controversial nature. If the matter is important enough, and your own
employment may be jeopardized, you may wish to appoint an attorney or a retired
Lodge member as your spokesman. (I strongly advise against any anonymous
statements. They more often than not are not given much credibility, and
undermine your Lodge's role as a forceful advocate and leader. They usually
convey a lack of courage and conviction.) Whether as an employee representative
or a private employee, public statements critical of your employer should most
always concern matters of serious public concern. Further, they should
generally be made only after you have gone through your employer's grievance
system, chain of command, or whatever mechanism your department uses to address
the issue of concern. Good faith representation and bargaining call for you to
give your employer an opportunity to correct a problem before they are publicly
chastised, regardless of whether such speech is protected or not. It also
demonstrates good faith on your part should you later have to address the
matter in court. When your speech does concern a matter of public interest, the
Government then bears the burden of justifying any disciplinary action it may
take as a result of that speech.
We'll look at some court cases that touch on the issue of free speech and
hopefully you will see more clearly how the courts balance the free speech
issue.
Smith v. Fruin, 28 F.3d 646 (
A Chicago detective complained to his commander about coworkers smoking in
designated non-smoking areas. After several complaints, nothing was done to
correct the problem. The detective then asked his commander for a new
smoke-free work location. The detective also petitioned two other superiors,
officials of the city's health department, and the police department's Office
of Legal Affairs for a smoke-free work location. He made these requests only on
his own behalf and for only his benefit.
After the detective made his complaint to the Office of Legal Affairs, he was
given what he felt was an unusual assignment. He was assigned to an unmarked
car and directed to investigate sex crimes from
The detective sued, claiming the Department had violated his First Amendment
rights by assigning him to a punishment detail for his smoking complaints. A
lower court decision denied the Department's motion for judgment without trial.
This decision was overturned by the appeals court. The court in overturning the
decision noted that for speech to be protected, it must be on a matter of public
concern. Although the court recognized that the issue of second-hand smoke was
a matter of public concern, it found that the detective's complaints addressed
not changes in his department's work environment, but only in his own
workplace. Therefore, because the detective was only speaking for himself, the
speech was not of public concern, and, as such, was not protected.
Therrien v.
Therrien was a police officer and the president of the local police union. As
the union president, he often appeared in the press criticizing police policies
and elected officials. During
Lesher v. Reed, 12 F.3d 148 (
Lesher worked for the canine section of the Little Rock Police Department. He
had donated a dog to the Department with a written agreement that he would be
able to reclaim the dog if it became unfit for police work. However, after the
dog bit a child, the Department did not allow Lesher to reclaim the dog and had
it destroyed. Lesher made several complaints to the media. He was then
transferred out of the canine section. Lesher sued, claiming the Department had
violated his constitutional rights, claiming his transfer was in retaliation
for his complaints.
The court dismissed the First Amendment claim and was upheld upon appeal. The
court stated that to sue for a violation of freedom of speech, the public
employee must first show that the speech touched on a matter of public concern.
In this case, the court ruled that Lesher's complaints were personal and not
protected speech.
Schnabel v. Tyler, 630 A.2d 1361 (1993)
After an armed robbery of a gas station, the owner was allegedly encouraged by
a police officer to complain about deficiencies in the investigation of the
crime. Subsequently, the owner did attend a city council meeting and criticized
the town's Chief of Police, Schnabel.
Schnabel, angered by the criticism, launched an internal investigation to
determine which police officer had encouraged the complaint. His investigation
focused on Police Officer Tyler.
The following day,
Subsequently,
In a jury trial, the court found in favor of
Oladeinde v. City of Birmingham, 963 F.2d 1481 (1992)
Birmingham Police Officer Oladeinde had spoken out against wrongdoing in the
Birmingham Police Department. She filed suit against the city, the Mayor and
police officials, claiming that they had violated her free speech rights by
retaliating against her and other whistleblowers and depriving them of their
property interests in their jobs. All those sued moved for immediate dismissal.
The Court dismissed the property interest claim and the claim against the
Mayor. However, the court found evidence indicating that police officials had
deprived Oladeinde of her First Amendment rights and returned the case for
trial.
Evans v. City of
Several radio dispatchers and police officers spoke out publicly about their
concerns over job security, disciplinary problems, lack of trust in the
department, tension and internal spying by off-duty police officers. They also
sought to oust the police chief. Subsequently, several community meetings were
held and these issues were discussed. The mayor and city aldermen refused to
accept the Chief's resignation and instead fired the dispatchers and demoted
two police officers. The employees sued on the grounds that the city had
violated their First Amendment right to free speech.
The court granted the city's motion to dismiss the case without a trial. It
noted that the employees themselves had admitted that their concerns about job
security, disciplinary matters and internal spying were not matters of public
concern. Therefore, the court dismissed the suit, stating that for speech to be
protected by the First Amendment it must involve matters of public concern.
Further, this is a case where the morale and efficient operation of the
Department had to be considered by the Court as it made its decision. Given the
nature of the complaints and that the Chief of Police was personally the
subject of much of the employees' criticism in this small department, the city
might also have been successful in making a case that the disruption of the
effectiveness of the Police Department caused by the employees' speech
outweighed the employees' interest in the public airing of their concerns even
if the court found that their speech had addressed matters of public concern.
It may well have found that their public concerns were not important enough to
be protected speech. Conversely, the employees in this case may have prepared
their case better by establishing stronger connections between their complaints
and matters of public concerns. For instance, they may have been able to make
the case that the Department disciplinary procedure was causing officers to be
afraid to do their jobs, putting public safety in jeopardy.
This case clearly points to the need to be prudent in your assertion of your
free speech rights. Again, if you are called upon to take on a controversial
issue, make sure your public statements are framed so as to address the public
concerns surrounding the issue as well as your members' concerns. You might
want to check and see if an issue is of interest to your barber, the clerk at
the corner store, or your neighbor--most anyone who is not a police officer.
Finally, check with competent legal counsel if there is any doubt.
The court also noted in this case that merely calling a press conference and
airing one's personal concerns in public does not cause that personal concern
to automatically rise to one of public interest.
Chico Police Officers' Association v. City of Chico, 283 Cal Rptr. (1991)
This is a great case for FOP Lodges and others who are recognized employee
representative organizations.
The Chico Police Officers' Association is the recognized exclusive bargaining
representative for the law enforcement employees of the City of Chico, California.
They publish an association newsletter, the "Centurion," which is
written to voice the thoughts and concerns of the association's members.
A copy of the "Centurion" was posted on a bulletin board within the
Chico Police Department that by agreement was reserved for posting association
materials. The newsletter was also mailed to local newspapers. In the
newsletter was an article by the Association's President, Officer Moore, which
was critical of the department's management. That same day, the Chief of Police
revoked the association's right to use the bulletin board and, after an
internal investigation, placed a written reprimand in Moore's personnel file,
charging Moore with violating departmental policy.
The association filed suit, claiming that the City and the Chief of Police had
violated Moore's and the Association's lawful exercise of free speech. The
association requested that the court order the removal of the written reprimand
from Officer Moore's personnel file and that the parties cease interfering with
the rights of Moore and the Association. The court granted the Association's
motion and the appeals court affirmed the decision. The court stated in
analyzing the case that whether a public employer has rightfully disciplined an
employee for the employee's speech requires that the court look at the balance
between the employee, as a citizen, being able to comment upon matters of
public concern and the interests of the state, as the employer, in promoting
efficiency and discipline. In this case, Moore's comments addressed issues of
public concern--the benefits of unionization and the lack of confidence in the
management of the police department. The court stated that the city had failed
to demonstrate that the newsletter had done any harm to internal discipline or
efficiency. Without evidence of actual harm, the city's interest did not
outweigh Moore's and the Association's interests in being able to speak freely
on such matters.
Plymouth Police Brotherhood v. Labor Relations Commission, 630 N.E.2d 599
(Mass. 1994)
This case raises a good point in that it will show you the wisdom of keeping
FOP communications, to the greatest extent possible, confined to FOP
communications tools. What may be appropriately transmitted via your Lodge
newsletter may cause you problems when transmitted over the Department's e-mail
system. In this case, Abbott, the police union president, sent an e-mail
message using the Department's computer. The message dealt with an unresolved
bargaining issue pertaining to hepatitis B vaccinations. In the message, he
referred to the city's bargaining team as "pigs, cheats and liars."
(As a bargaining tactic, I would not generally recommend this kind of language
ever being used to refer to the bargaining team of your city, especially in any
official or written form. From a professional standpoint, good bargaining calls
for respect and good faith to be demonstrated by all parties. Personal attacks
do not demonstrate respect and good faith. From a "rubber meets the
road" perspective, if you have made a good argument on a close issue and
are making progress, one sure way to kill that progress is to call the persons
you are negotiating with "pigs, cheats and liars." We all let our
frustration get the best of us from time to time; however, it is not good. Keep
such outbursts to a minimum. In those cases where the frustration does overcome
your judgment, an apology is often a way to get an issue moving again. Everyone
appreciates a little well-placed humility.) The message was ultimately printed
and posted on the union bulletin board located in the station locker room.
Subsequently, the chief of police notified Abbott that he was being suspended
for 5 days for insubordination and conduct unbecoming, even though the Chief
acknowledged that Abbott was addressing a collective bargaining issue. The
union filed an unfair labor practice complaint with the Labor Relations
Commission. The Labor Commission dismissed the complaint as did the trial court
and the appeals court. The appeals court ruled on the issue of whether Abbott's
conduct was "protected, concerted action" as defined in the state's
collective bargaining law. The court said that "an employee may not act
with impunity even though he is engaged in a protected activity." His
rights must be balanced with the department's right to maintain order. The
commission and courts noted that Abbott's derogatory comments were not made in
the heat of negotiations, but after a time to reflect about his thoughts.
Therefore, the commission found and the courts affirmed that the suspension was
not a result of Abbott's protected activity, but as a consequence of
insubordinate remarks.
This case may seem in some respects to be in direct conflict with the Chico
case above. However, there were some subtle, but important, differences. In
Chico, the statements were about the issues, not the personalities, involved.
Point one: stick to the issue. In Chico, the items were printed in the
association's newsletter, not on the Department's computer. The court recognized
that one of the reasons for an association newsletter is to address these types
of issues. It is not so obvious that this is the purpose of the Department's
computer. Point two: "God, bless the child that has his own." Use
your own communications tools when possible. Also, if you must address persons,
as stated above try to stick to specific differences. Terms such as
"liars" and "cheats" do little to settle differences and
can harden those with whom you must bargain.
Hansen v. Soldenwager, 19 F.3d 573 (11th Cir. 1994)
In this case, officer Hansen was giving testimony during a deposition in the
criminal prosecution of a former police officer. During his testimony, Hansen
criticized the prosecution of the case, calling it ridiculous and stupid. He
was also critical of the investigating officers and the management of the
police department. Upon hearing of Hansen's statements, the Chief of Police
ordered an internal affairs investigation which resulted in a recommendation by
the Chief to terminate Hansen. The city manager reduced the disciplinary
recommendation to a five day suspension. Although Hansen admitted his conduct
was unprofessional, he filed a grievance challenging the suspension which was
ultimately dismissed by the police personnel director. Hansen then filed suit,
alleging that the Chief of Police and the internal affairs investigators had
violated his free speech rights. The trial court denied a motion to dismiss the
case without trial. However, the appeals court did dismiss the case.
The court stated that the act of providing testimony, itself, does not provide
an absolute shield protecting anything an employee might say. The court ruled
that the speech must be balanced against the need of the department to maintain
order and discipline. To be protected, Hansen's free speech interest must
outweigh the department's interest. In this instance, Hansen admitted his
speech had been unprofessional. He had ridiculed both fellow officers and his
superiors. The court said that it was reasonable for the Chief of Police to
believe that Hansen's speech had threatened the efficiency and the close
working relationship of the police force. Therefore, the Chief's and officers'
actions did not violate Hansen's free speech rights.
The question, again, revolved around the interests served by the officer's
speech and how they balanced against the interests of the department. Hansen's
fate might have been different if he had been revealing information regarding
an issue of police corruption or the like that was an issue of genuine public
concern. However, Hansen's speech did not touch on such an issue. He was
venting personal opinions and appears to have been speaking about personalities
and not issues.
Lach v. Lake County, Indiana, 621 N.E. 2d 357 (Ind. App. 3 Dist. 1993)
Lach was a lieutenant for the Lake County Sheriff's Department. He wrote two
letters that were published in the local newspaper supporting the opponent of
the incumbent sheriff. He also made critical remarks of the job that the
current sheriff was doing. As a result, the sheriff charged Lach with
misconduct and Lach received from the county's merit board a 20 day suspension.
Upon appeal, the trial court upheld the suspension. However, the appeals court
overturned the decision. The appeals court analyzed the case using a three
prong test. First, the court examined whether the employee was speaking on a
matter of public concern. The court determined that Lach was speaking on such
an issue, attempting to educate the public regarding candidates for public office.
In fact, he was involved in an open debate, his letter having been in response
to others printed in the newspaper. Second, the balance test--the court must
weigh the interests of the employee being able to speak on public issues
against the interests of the employer who is responsible for running an
efficient office. Here, the court ruled that there was no proof which
demonstrated that the efficiency of the sheriff's office had been diminished in
any way by Lach's comments. Conversely, Lach put on testimony that his comments
had not affected the department's operations. Third, the court had to determine
if the discipline was, in fact, a result of the employee's speech. Lach was
able to show that the suspension was a result of his letters. Therefore, the
court ruled that county had failed to carry its burden and ruled in favor of
the deputy.
This case may have been decided differently if the county had been able to
demonstrate that Lach's speech had caused tension within the ranks of its
28-man sheriff's department. However, it also demonstrates the subjective
nature of free speech cases and the importance of speaking about matters of
public concern.
Botchie v. O'Dowd, 432 S.E.2d 458 (S.C. 1993)
Botchie and O'Dowd both attempted to be appointed interim sheriff after the
death of the incumbent. O'Dowd gained the appointment and soon thereafter fired
Botchie, claiming that Botchie was unable to accept the role reversal. Botchie
sued, claiming among other violations that O'Dowd had fired him as a result of
his exercise of free speech. The trial court dismissed all of Botchie's claims
without trial. However, the appeals court sent the case back to the lower court
to hear the free speech issue. The appeals court used a two prong test to
analyze this issue. The court found that Botchie's speech concerned matters of
both public and private concern and, as such, was subject to limited
protection. Further, the appeals court found that there had been no evidence
produced to demonstrate that Botchie's speech had in any way adversely affected
the morale or effectiveness of the sheriff's department. Therefore, the case
was sent back for trial.
The case did note that deputy sheriffs in South Carolina serve at the sheriff's
pleasure, and that sheriffs are prohibited from compromising their statutory
authority to discharge deputies at their discretion. However, as we will see
later in Adkins v. Miller, although statutes can mandate that an employee be
considered at-will, they cannot codify illegal terminations.
Maxey v. Smith, 823 F. Supp. 1321 (N.D. Miss. 1993)
Maxey was a Chief of Police who had had a number of minor disagreements with
the Starkville board of aldermen. Apparently questioning the Chief's ability to
adequately investigate a homicide, the board of aldermen hired a private
investigator to reopen a murder/rape investigation. The investigator
subsequently reported that he had developed a suspect. When asked about this
newspaper report, the Chief stated that he had not been privy to the
investigative report because, "It is totally inaccurate, and they know I
can point out inconsistencies." The board of aldermen then acted to place
Maxey on administrative leave without pay. Maxey sued and requested an
injunction to order the city to reinstate him as Chief of Police.
The court, in granting injunctive relief, looks at several issues. First, the
court must determine if there is a substantial likelihood that the plaintiff
will be successful based on the merits of the case. Second, the court looks to
see that if by failing to grant the injunction, the plaintiff will suffer
irreparable injury. Third, the injury suffered by the plaintiff must outweigh
any threat of harm to the defendant. Fourth, the court must weigh the effects
of granting an injunction on the public interest.
The court ruled in this case that Maxey would most likely be successful in
establishing that his free speech rights had been violated. Also of importance,
the court noted that although Maxey might be an at-will employee (there was
some dispute to this issue) subject to dismissal for any reason, that even
at-will employees cannot be fired for unlawful reasons. Plainly, at-will
employees cannot be fired for exercising their First Amendment rights. The
court also found that reinstating Maxey would have a positive affect on the
Police Department, not a detrimental one. Further, the court found that the
public had an interest in protecting the rights of its fellow citizens--in this
case, Maxey's First Amendment rights.
Angle v. Dow, 822 F. Supp. 1530 (S.D. Ala. 1993)
Angle was a police officers who, after stopping two undercover officers while
he was on routine patrol, typed a satirical memo regarding the incident that
included the type of vehicle driven by the undercover officers and its license
plate number. Also in the memo were comments critical of the need for the
undercover operation. After jokingly sharing the memo with several officers,
Angle tossed the memo in a trash can. Unfortunately, someone retrieved the memo
and posted it on the bulletin board. Subsequently, Angle was charged with
compromising the safety of the undercover officers and fired. Angle appealed to
the county personnel board which upheld the firing. Angle sued, claiming his
First Amendment right to free speech had been violated. The Chief and Mayor
moved for summary dismissal, which the court granted.
The court used the usual analysis in deciding this case. It noted that a review
of prior case law showed that law enforcement employees are subject to greater
First Amendment restraints than other citizens since weight had to be given to
the necessity of maintaining a close working relationship in a quasi-military
organization. The court noted that in balancing the free speech interests of
police officers with the need of their employers, police officers need not
suffer a watered down version of their constitutional rights, the state's
interest in regulating its police force can be compelling. The court stated
that it could not substitute its judgment for that of a police department when
evidence demonstrated either that someone's speech caused an actual disruption
of the police operation or a reasonable likelihood of leading to such
disruption. The court found that Angle's speech was not of concern to the
public based on the fact that he never attempted to address the matter in any
public forum. Therefore, the matter was one of personal interest and his speech
was not protected.
Pruitt v. Howard County Sheriff's Department, 623 A.2d 696 (Md. App.
1993)
Watch the use of any ethnic behavior, regardless of how innocent it may appear
to be. The Pruitts, a sergeant and a major, and other officers of the Howard
County Sheriff's Department, liked playing "Hogan's Heroes" and
started using exaggerated German accents, military mannerisms such as heal
clicks and the like, in front of other officers. The conduct somehow got
reported in a local newspaper and was witnessed by the Sheriff. Administrative
charges were filed, charging the officers with conduct unbecoming. The Pruitts
were ultimately fired. They appealed. However, their appeals were dismissed.
Here again, the court ruled that for an employee's speech to be protected, it
must concern an issue of such public interest so as to outweigh any adverse
affect it may have upon the interest of the employer in maintaining the public
service. Here the court ruled that the speech was not of public concern. The
Pruitts were not speaking to the operation of the department, but merely
playing "Hogan's Heroes" in uniform. Although their joking around did
not affect the operations of the department, it did damage its public image.
The speech therefore was not protected by the First Amendment.
Adkins v. Miller, 421 S.E.2d 682 (W. Va. 1992)
West Virginia state law provided that sheriff's deputies were only employed
during the term of the sheriff. A new sheriff was elected in Boone County, West
Virginia. Adkins and other employees of the old sheriff reported to work and
were told to leave. The employees sued, charging their dismissal had violated
their constitutional rights of freedom of speech and association under the
First Amendment.
The court ruled that the U.S. Supreme Court had spoken to the issue numerous
times stating that dismissals of non-civil service protected employees for
political patronage reasons is illegal unless those employees hold a
confidential or policy-making position. These confidants to the elected
official may be terminated for political reasons. Further, no state can codify
such political patronage as the West Virginia law did. This, too, is violative
of the First Amendment as it would inhibit freedom of speech. The court sent
this case back to trial for the lower court to determine if the employees were
terminated solely for political reasons and, if so, if they were policy-making
employees.
Stough v. Gallagher 967 F.2d 1523 (11th Cir. 1992)
Gallagher was elected sheriff. Stough was a Sheriff's Department captain and
while off-duty he had attended a number of public functions during the election
campaign and made speeches supporting Gallagher's opponent. Stough had also
helped raise funds for the opponent, again while off-duty. Upon his election,
Gallagher demoted Stough to sergeant and Stough sued, claiming a violation of
his First Amendment right to free speech.
The Court noted that Stough's speech was clearly a matter of public concern.
Further, the court found that the manner, time and place of Stough's speech
showed that not only was the speech of public concern, but did not affect the
efficiency of the department. His statements were made off-duty in public
forums and at a time when voters were seeking information on the candidates.
Therefore, the court ruled that the demotion was clearly related to Stough's
protected speech. Therefore, the court denied the sheriff's request for summary
judgment and set the matter for trial.
Leonard v. Fields, 791 F. Supp. 143 (W.D. Va. 1992)
Four deputies had requested that the sheriff go before the county board of
supervisors and petition the board for an increase in their automobile mileage
reimbursement. The sheriff was reluctant to do so. Therefore, the deputies went
to the board themselves with their attorney and requested the increase. During
the proceeding, one of the board members complained about the deputies'
appearance and stated that such an issue should have been brought by the
sheriff. When the sheriff found out about the meeting, he fired the four
deputies for violating the chain of command and for going before the board
without his approval. The officers sued, claiming a violation of their right to
free speech. The court upheld the firing on the grounds that the issue of
reimbursement of automobile mileage was an issue of personal concern. The
matter was not one of a significant enough social, political or community
concern to rise to a matter of public concern. Therefore, the speech was not
protected.
Howell v. Town of Carolina Beach, 417 S.E.2d 277 (NC App. 1992)
Howell was a police officer who took a leadership role in advocating the
purchase of new weapons for his department. The town manager canceled the
request for the new firearms. Howell then wrote a memo, which went around the
department, outlining the inadequacies of the current weapon the department was
using and stating that if an officer was injured due to a weapon malfunction,
the town would be held liable. The town manager called Howell and the chief in
and gave both an oral reprimand. However, the town manager felt Howell's
behavior at this meeting was tantamount to insubordination and subsequently
terminated him. Howell sued, claiming violation of his due process and free
speech rights. The trial court affirmed the firings. Howell appealed.
The appeals court found that Howell's speech did relate to a matter of public
concern; a malfunction of a weapon could be of danger to the public as well as
a police officer. Further, the court found that the form and context of the
memo was reasonable. The court sent the issue back for trial to determine if
the firing was due to the memo, which would be violative, or some other reason
which the town could justify.
As you can see, the issue of freedom of speech is
not unlimited. There is a constitutional right to freedom of speech, but there
is not necessarily a right to be employed by a certain agency while you
exercise that right. It is important that when you speak on issues that would
be seen as significant by your employer that they are also matters of public
concern if you wish your statements to be protected. Also, even when the issue
is of public concern, it is only protected when the value and significance of
the speech outweighs any harm done to the effectiveness and working environment
of the employer caused by the speech.
If you are in doubt about any issue which you as an employee representative may
wish to speak on, call your lodge attorney. Sometimes you may want to have a
retired member or an attorney represent your organization's views, if your
employment may be jeopardized and your speech may not be protected.
Hopefully you now better understand the issues related to freedom of speech and
how they affect you as a representative for your members.