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Attorneys Robert W. Smith and Christopher J. Eibeler

Do Public Employees Have First Amendment Rights?

Courts have made clear that a person does not relinquish his or her First Amendment rights under either the state or federal constitution when accepting employment with the government. Whether employed by the federal, state or local government, public employees are still citizens and share an important role in the general societal interest of fostering commentary on matters of public concern. Because public employees are often in the best position to know what ails the operations of the government, the constitution assures that these employees will be permitted to speak on important issues. The free flow of informed opinions of governmental employees can greatly benefit public debate. After all, the core purpose of the First Amendment is to assure freedom of communication on matters relating to the functioning of government.

However, not all speech of governmental employees is protected by the First Amendment. Only speech that relates to issues of public concern will be afforded constitutional protection. This means that private disagreements unrelated to issues impacting the public will not retain constitutional protection. For example, there are no constitutional protections for a governmental employee who complains about a personal employment matter, such as a negative write-up or disciplinary action. On the other hand, a government employee may be protected against retaliation by his or her supervisors and employer for complaining about issues of fraud or taxpayer waste.

In the landmark United State Supreme Court case, Pickering v. Bd. of Education, 391 U.S. 563, 574 (1968), the highest court created a balancing test to be used in cases involving the free speech of public employees. Under the “Pickering balancing test”, a court must weigh the employee’s interest as a private citizen speaking on matters of public concern against the government employer’s interest in providing particular public services efficiently. The test involves a two-step process. First, the court must determine if the challenged speech qualifies as speech on a matter of public concern. If the speech is of a matter of public concern, the court must then balance the interests of the employees and the public in the speech against the interests of the government in operating efficiently and effectively.

The tension between public employee and government employer over free speech does not always arise after the employee has exercised his or her First Amendment right. Often, government employers have in place policies or rules designed to preempt employees from speaking about certain categories of issues. Government restrictions on speech before it occurs are presumptively invalid and subject to a strict scrutiny analysis. Such a law, policy or regulation is particularly offensive to the constitution because it chills potential speech before it happens. This is commonly referred to as an unconstitutional prior restraint of First Amendment protected speech. In cases involving a prior restraint of protected free speech, the government must demonstrate to the court that the law, policy or regulation which otherwise infringes on the First Amendment right of employees is necessary to achieve a “compelling state interest.” In these cases, the government must also demonstrate the law, policy or regulation in question is “narrowly tailored” to achieve that compelling state interest and that it is the least restrictive means to achieve the state’s purpose. In cases in which the government cannot meet this heavy burden, courts will strike down the law, regulation or policy in question as violating the constitution.

Cases involving constitutionally protected speech are inherently fact specific and require extensive analysis by a seasoned First Amendment constitution law attorney. If you or a family member are a public employee who believes your governmental employer has infringed upon your First Amendment rights, you should immediately contact an experienced First Amendment lawyer for advice and counsel in connection with your specific facts and circumstances.

DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Client Reviews
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We had a wrongful termination issue combined with a denial of unemployment insurance. Chris Eibeler was our primary attorney. His partner Bob Smith also consulted and gave us good advice. They were both so kind, caring, and professional. They guided us though a very tough time and a positive outcome versus a prior employer. They were also able to reverse our denial of unemployment insurance. I cannot recommend Smith and Eibeler highly enough. The entire staff is very professional, personable, and caring. Tom Wilson
★★★★★
I went to Smith Eibeler LLC for a last minute unemployment matter. Chris, Diane and his staff were very professional and easy to talk to. They provided knowledgeable insight and also kept me in the loop with the what was happening. I would not hesitate to go to him again. John Jung
★★★★★
Chris Eibeler (and the whole team) is very knowledgeable in all aspects of employment/unemployment here in NJ. They break down the most difficult aspects of the law, which allows you to conceptualize and better understand the complexities of the NJ Labor & Employment system. Smith Eibeler should be your first call regarding any Employment, workforce, or Labor questions here in New Jersey. I highly recommend them. Brian Allen
★★★★★
I approached Chris Eibeler regarding an unemployment case in early 2016. Him and his staff are some of the most professional people I have ever dealt with. The process took a while, but his approach to hard questioning helped me win my case. He knows how to get the job done and I am glad I went to him. I would recommend him to anyone in the future who asks for a lawyer. Thank you Chris! Tim F.
★★★★★
I highly recommend the office of Smith Eibeler for employment related issues, particularly anything related to restrictive covenants or post-employment contracts. I found Smith Eibeler via the web and cannot believe how fortunate I am to have found them. My case was handled by Bob Smith who represented me in a potential lawsuit by my former employer for violation of a post-employment contract (not a restrictive covenant per se). Bob was professional, friendly, understanding, and above all extremely helpful. Bob helped me avoid a lawsuit and was extremely knowledgeable in this field. I was thoroughly impressed with his prowess. Hopefully I will never have a legal issue related to employment again, but if I do, I will not hesitate to retain Smith Eibeler again! Gavin Tully