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1st Amendent doesn't apply to public employees

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  • 1st Amendent doesn't apply to public employees

    ...at least not like it does for everyone else. I was just curious how many people actually knew this. Since my rude awakening to this fact years ago, I always counsel new guys to this quirk of our Constitution. You can't say anything you want and expect "free speech" to protect you, not as a public employee anyway.

    Many years ago, as a then union president, I wrote a letter to the editor of our local newspaper criticizing our Mayor for passing a pay raise for the cops but not for the FD. Our fire chief pulled me aside and warned me that the Mayor could theoretically suspend or fire me for such a comment in a public forum. I thought, "yeah right, we'll see what the union attorney has to say about that." I was shocked that the union attorney told me I was definitely on shaky legal ground and keeping my job was no guarantee if the Mayor decided to go after me. In the end he didn't, but the incident caused me to research everything I could find on this issue.

    What I found is that countless courts have held that public employees are not afforded the same free speech rights as everyone else. To be protected speech, it has to reference something that is deemed of "public concern." As our attorney said, it was definitely questionable whether firefighter salaries were a topic public concern. He referenced a teacher case where a termination was upheld due to similar circumstances because the judge felt salaries of a teacher were not of critical importance to the public. There was another similar teacher case where a public teacher was fired after writing a letter to the editor complaining about a new dress code for staff. The court upheld her termination, saying that the dress code for teachers is of little importance to the public.

    So, what can we say? In most cases we can comment about things like staffing or closing fire stations, or response times. These are things that most people would agree are of public concern. Talking about salaries, benefits, and internal policies are generally considered no-no's, unless your attorney has advised differently.

    Anyway, just a general topic I thought some might find interesting because judging by some of my own personnel who spout off all sorts of stuff under the guise of "free speech," not everyone understands how public employees are protected.
    Last edited by roykirk1989; 06-30-2010, 12:06 PM.

  • #2
    One of the problems with today's entitlement society is that everyone thinks that the "right to free speech" means they can say anything they want, anywhere they want, anytime they want, free of any repercussions whatsoever. Guess what, it never meant that. Public or private sector, doesn't matter. It means you generally can't go to jail or be prosecuted for saying something. It does NOT mean that an employer can't hold you accountable for speech or behavior that is inappropriate for the workplace. I think any employer, public or private, has a right to take action if an employee is openly trashing the organization in a public forum.
    Chief Dwayne LeBlanc
    Paincourtville Volunteer Fire Department
    Paincourtville, LA

    "I have a dream. It's not a big dream, it's just a little dream. My dream — and I hope you don't find this too crazy — is that I would like the people of this community to feel that if, God forbid, there were a fire, calling the fire department would actually be a wise thing to do. You can't have people, if their houses are burning down, saying, 'Whatever you do, don't call the fire department!' That would be bad."
    — C.D. Bales, "Roxanne"

    Comment


    • #3
      Originally posted by dmleblanc View Post
      I think any employer, public or private, has a right to take action if an employee is openly trashing the organization in a public forum.
      Although union contracts can sometimes impact that. I think you're essentially right, especially when it comes to at-will states.

      Comment


      • #4
        Originally posted by roykirk1989 View Post
        Although union contracts can sometimes impact that. I think you're essentially right, especially when it comes to at-will states.

        Well, in right-to-work states, union members are often attacked by city leaders for the unionism, that is a fact.
        I don't believe that our right to free speech is any different from any other profession.

        Anytime we use our free speech rights, there is a potential negative impact on ourselves, by other people and potentially our employers; the constitution does not protect us from that. It only protects us from sanctions by the government.

        Comment


        • #5
          Can't yell fire in a public place either unless there really is a fire. Like it or not there are limits on what one can say. Even public employees have to be careful of what they say. They cannot bad mouth the people that are paying their salaries. It is poor customer relations and would result in an instant dismissal, no questions asked.

          Comment


          • #6
            Originally posted by roykirk1989 View Post
            ...at least not like it does for everyone else. I was just curious how many people actually knew this. Since my rude awakening to this fact years ago, I always counsel new guys to this quirk of our Constitution. You can't say anything you want and expect "free speech" to protect you, not as a public employee anyway.

            Many years ago, as a then union president, I wrote a letter to the editor of our local newspaper criticizing our Mayor for passing a pay raise for the cops but not for the FD. Our fire chief pulled me aside and warned me that the Mayor could theoretically suspend or fire me for such a comment in a public forum. I thought, "yeah right, we'll see what the union attorney has to say about that." I was shocked that the union attorney told me I was definitely on shaky legal ground and keeping my job was no guarantee if the Mayor decided to go after me. In the end he didn't, but the incident caused me to research everything I could find on this issue.

            What I found is that countless courts have held that public employees are not afforded the same free speech rights as everyone else. To be protected speech, it has to reference something that is deemed of "public concern." As our attorney said, it was definitely questionable whether firefighter salaries were a topic public concern. He referenced a teacher case where a termination was upheld due to similar circumstances because the judge felt salaries of a teacher were not of critical importance to the public. There was another similar teacher case where a public teacher was fired after writing a letter to the editor complaining about a new dress code for staff. The court upheld her termination, saying that the dress code for teachers is of little importance to the public.

            So, what can we say? In most cases we can comment about things like staffing or closing fire stations, or response times. These are things that most people would agree are of public concern. Talking about salaries, benefits, and internal policies are generally considered no-no's, unless your attorney has advised differently.

            Anyway, just a general topic I thought some might find interesting because judging by some of my own personnel who spout off all sorts of stuff under the guise of "free speech," not everyone understands how public employees are protected.
            I have to respectfully disagree with you on some of your post.

            Under the first admendment, your rights of free speech are protected under most circumstances. For example, as an employee, you can go up to your boss and tell him in your opinion under no uncertain terms what you think of him or his abilities and you will not go to jail. You may be legally fired for what you said, but you cannot be criminally charged. You can't however go up to him and tell him that your going to "kill" him no matter how much you'd love to nor can you tell him anything else that could be considered criminal; but aside from that, your free to speak your mind.

            Now, if you're speaking as a union official, its considered that your wearing your "union hat" at the time and under labor law, you have even more protection in most circumstances as well. As a long time labor leader in my local union, there were many times when I had to say what was on my mind to management and in some cases it was laced with colorful metaphors. If you wrote the letter to the Newspaper and signed it in the capacity of union President, then I would tend to think that you'd be protected under the law, however if you signed it as "john doe, employee of the city", then you could be subject to discipline.

            Again, the key word in both scenarios is "most". As you pointed out there might be certain situations where you might have to temper what you say, but as a rule, as long as its not liable/slanderous, you have alot of latitude to speak your mind, especially when in a union vs. management situation.
            "Did you check under the bed?" -- Judge Crater, 1930

            Comment


            • #7
              Originally posted by gamewell35 View Post
              I have to respectfully disagree with you on some of your post.

              Under the first admendment, your rights of free speech are protected under most circumstances. For example, as an employee, you can go up to your boss and tell him in your opinion under no uncertain terms what you think of him or his abilities and you will not go to jail. You may be legally fired for what you said, but you cannot be criminally charged. You can't however go up to him and tell him that your going to "kill" him no matter how much you'd love to nor can you tell him anything else that could be considered criminal; but aside from that, your free to speak your mind.

              Now, if you're speaking as a union official, its considered that your wearing your "union hat" at the time and under labor law, you have even more protection in most circumstances as well. As a long time labor leader in my local union, there were many times when I had to say what was on my mind to management and in some cases it was laced with colorful metaphors. If you wrote the letter to the Newspaper and signed it in the capacity of union President, then I would tend to think that you'd be protected under the law, however if you signed it as "john doe, employee of the city", then you could be subject to discipline.

              Again, the key word in both scenarios is "most". As you pointed out there might be certain situations where you might have to temper what you say, but as a rule, as long as its not liable/slanderous, you have alot of latitude to speak your mind, especially when in a union vs. management situation.
              I'd be hesitant of relying on the "union hat" protection too much in a right to work state, like where I'm at now. The union here has almost no power and city would not hesitate to fire a union president or any other union official if they tried to bad mouth the city government to the press. That's why I try to educate my guys that the "free speech" argument isn't going to save their job if the city tries to go after them. I agree with everything in your first paragraph, but unfortunately there are a lot of people out there (many of my staff included) who think that you can't even be fired if you claim you were exercising your 1st amendment rights. Clearly case law has shown that's not true.

              I remember a case that hit the news around the same time I had my near miss. A union president went over his fire chief's head to the Mayor to advocate for hiring more staff. The fire chief terminated him under the premise that he'd circumvented the chain of command. The union president argued in court that he was simply exercising free speech in his talk with the Mayor. I know the initial court upheld the termination, but I'm not sure if it was ever appealed.

              Comment


              • #8
                When it comes to writing something or even talking to an elected official the preception is that you whether you're a union president, or just an average public employee, you are speaking in an official capacity even if you are talking as average joe citizen. Officials and the media rarely distinguish between the differences and that's where the trouble begins.

                I'm no lawyer, but I know that I still have the right to free speech, I just have to remember who I am talking to or what I am writing.

                It's a fine and difficult line to walk, talk or write.

                Comment


                • #9
                  The 1st Amendment was written to protect POLITICAL speech. Nothing else. All the modern extensions were invented by leftist progressives.

                  Comment


                  • #10
                    Originally posted by neiowa View Post
                    The 1st Amendment was written to protect POLITICAL speech. Nothing else. All the modern extensions were invented by leftist progressives.
                    I don't know about that. I know that most of the people I've met in this business who like to wave the "free speech" flag around are most certainly very right sided conservative, but I imagine it goes both ways.

                    Comment


                    • #11
                      Originally posted by neiowa View Post
                      The 1st Amendment was written to protect POLITICAL speech. Nothing else. All the modern extensions were invented by leftist progressives.
                      Farmboy starts off well. Then falls off the cliff.

                      1st Ammendment issues are always being contested in form or another.

                      What does the 1st Ammendment really say?

                      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.
                      It doesn't say anything about the Executive or Judicial branch. Both of those groups have enacted either Exec Orders or judicial warrants that very much impact speech.

                      I never worked in a right to work state. But I believe (as someone pointed out), the union president has a right to free speech. He also has a right to the potential consequences of being terminated. Neither group has broken any law in either case.
                      They told me if I voted for Hillary Clinton the president would be emotional, impulsive, and unpredictable. They were right. I voted for Hillary Clinton and got a president that is emotional, impulsive, and unpredictable.

                      I'm not saying you're stupid. I'm saying you have bad luck when it comes to thinking.

                      Comment


                      • #12
                        Originally posted by scfire86 View Post
                        .... "enacted" either Exec Orders or judicial warrants that very much impact speech..
                        Site the provisions for such in the Constitution.

                        Originally posted by scfire86 View Post
                        ....I never worked in a right to work state....
                        Noooooooo! Tell us more.

                        Comment


                        • #13
                          Originally posted by neiowa View Post
                          Site the provisions for such in the Constitution.
                          You doubt the ability of the President to issue an executive order or a judge to issue a gag order?

                          Keep that thought. I'll get back to you.
                          They told me if I voted for Hillary Clinton the president would be emotional, impulsive, and unpredictable. They were right. I voted for Hillary Clinton and got a president that is emotional, impulsive, and unpredictable.

                          I'm not saying you're stupid. I'm saying you have bad luck when it comes to thinking.

                          Comment

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