“Do employees have a right of free speech?”

Question: I am a public servant, a teacher on Long Island, New York. 

Does my principal have the right to tell me not to talk to a particular student or employee? The particular principal actually sent the student to me and when she talked to me, he then told me that I had gone against his order, and I was sent home from my duties as teacher. 

Doesn’t this go against my First Amendment rights of free speech?

Long Island, New York

Answer: Dear Doug: You present an interesting question, and one that many people wonder about. Here is the correct analysis:       

1. Public employees – like yourself – have “free speech” rights at work; employees of “private employers” do not. This is because the First Amendment to the U.S. Constitution says that “Congress shall pass no law abridging the right of free speech.” This has been interpreted by the Courts as saying that governmental entities – like your school board – cannot limit free speech of their employees. Since “private employers” do not “pass any laws,” the Constitutional right of free speech does not apply to their regulation of their employees’ speech at work. 

2. However, as with all of our legal rights, the right to free speech has its limits. Whenever we have rights, we have reasonable limitations on those rights, as well. You have a right to marry, but not a right to marry ten people. You have a right to drink alcohol, but you cannot do so while you are piloting an airplane. You have a right to vote, but not in a state where you do not live. As you have probably heard, you have a right to free speech, but you cannot shout “FIRE!!!” in a crowded movie theater, as that would likely cause a potentially deadly stampede toward the theater doors.   

The lesson is this: freedom is precious, but it can also be abused. Thus, reasonable limits are deemed acceptable.  

3. Our Courts have held that the Constitutional right to free speech of public employees applies to valid “issues of public concern,” but not to issues arising out of daily duties. In a well-known case called “Pickering vs. Board of Education,” public school teacher Pickering was fired for writing a letter to a local newspaper critical of the local school board. The Court ordered the school board to reinstate Pickering as a teacher because Pickering had raised a legitimate matter of public concern, and  his statements were neither recklessly false nor ones that would tend to interfere with his performance of his job. 

On the other hand, in another well-known case called “Mt. Healthy vs. Doyle,” a teacher, Mr. Doyle, lost his job after he engaged in a hand gesture commonly called “giving someone the finger” to two students. The Court upheld this firing, even though “giving the finger” has been accepted by many other Courts as a kind of permissible “speech” in other contexts.   

4. So, it seems your “free speech” rights were not violated if it was the Principal’s reasonable judgment that his order was appropriate to maintaining an orderly school, or in the student’s interests. From what you wrote, it seems that the Principal had some reason for his direction to you not to speak with a particular student, even if you may believe he was wrong or he made a mistake. While you may disagree with how the matter was handled, and what was done, it seems that the Principal’s directive, and his sending you home for not complying with it, would be upheld. No violation of First Amendment rights here.  

Douglas, I hope this clarifies things for you on this subject, and helps you guide yourself accordingly in the future. Thanks for writing in. 

My Best to You,
Al Sklover

P.S.: We offer a Model Memo Objecting to Retaliation at Work. If interested, just [click here.] Delivered by Email – Instantly! 

P.P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

Repairing the World –
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© 2013 Alan L. Sklover, All Rights Reserved.

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