Free speech in public sector not so free when it’s offensive

Wednesday, March 25, 1998

A New Jersey firefighter utters racist statements at another city employee while off-duty. A Wisconsin worker makes offensive remarks about minorities that appear in a newspaper story. Both workers face punishment for their offensive expession.

State courts recently rejected the contentions of these workers that the punishments they received violated their free-speech rights. Both had claimed the First Amendment protects the right to engage in offensive speech, particularly speech that occurs off the job.

On multiple occasions and in many contexts, the U.S. Supreme Court has noted that “if there is a bedrock principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because it finds the idea itself offensive or disagreeable.”

Note the wording here: “the government may not prohibit.” The first question to ask in assessing First Amendment implications is whether the employee works in the public or private sector. The New Jersey case involved an Atlantic City firefighter who was off-duty when he uttered a racial slur at a city police officer. The Wisconsin workman, on the other hand, worked for a private company.

This distinction between public and private is important, because a private employer is not generally subject to the strictures of the First Amendment, which safeguard individuals only from government interference with speech.

While “Congress shall make no law … abridging the freedom of speech,” a private employer may make rules that have that effect.

Thus, a private employer can oftentimes fire an employee for his or her speech without First Amendment repercussions. Even public employers have a good deal of latitude in restricting workers’ free-speech rights. As the U.S. Supreme Court explained in Waters v. Churchill (1994), “even many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.” The First Amendment protects an individual from criminal charges for wearing a T-shirt reading “F— the Draft,” but it does not protect a government employee from wearing such a message at work.

Courts evaluate public employees’ free-speech claims under a two-prong test. First, the court considers if the employee speech touches on a matter of “public concern.” If the speech is only a private matter, the public employee loses.

Of course, determining exactly what speech is a matter of “public concern” is tricky. Free-speech expert and UCLA law professor Eugene Volokh admits that “this is a very murky area where the cases are hard to reconcile with each other.” Another legal commentator, Pengtian Ma, has written that “due to the inherent elasticity of the concept … the law in this area is inconsistent and unpredictable.”

The Supreme Court in a 1983 decision defined “public concern” as “relating to any matter of political, social, or other concern to the community.”

In the case of racist speech, Volokh says that “personal insults, whether racial or not, are not matters of public concern.” The Supreme Court of New Jersey agreed in the firefighter’s case, noting that “the racial slur was not remotely related to any matter of public concern.”

If the court does determine the speech to be a matter of public concern, it proceeds to the second step in the analysis: a balancing test in which the court weighs the employee’s free speech rights against the employer’s interest in an efficient workplace.

In the New Jersey case, the court said the city had every right to punish the employee for off-the-job racist speech to another public employee because of the “city’s interest in maintaining order, discipline, harmony, and a professional working relationship” among departments.

Volokh explains that “because racist speech is so offensive, it is very likely that courts will find such speech to be punishable under the rationale that the speech will interfere with office morale.”

Volokh concedes that the balancing test is often “not very protective of government employee speech.” However, employers do have strong interests in maintaining a stable, healthy and productive working environment.

Racist speech by a government employee impairs relationships, lowers morale and can even lead to employer liability for a racially hostile work environment. Public employees subvert the very purpose of their employment by engaging in racist speech.

Unfortunately, some employers may exaggerate the level of disruption caused by speech in order to rationalize the dismissal of a troublesome employee. For this reason, Volokh says that “courts should generally require employers to show tangible evidence that the speech impaired working relationships and created disruptions.”

Public employees should not be allowed to engage in racist speech on the job. If the speech takes the form of a personal insult, the speech does not meet the threshold “public concern” test. Even if the racist speech does qualify as a matter of public concern, the potential for disruption in the workplace swings the scales in the employer’s favor.

Off-the-job racist speech presents a much more difficult question and a much more problematical step for employers. The employers’ interests obviously become weaker as the connection between the speech and job becomes more attenuated. Government employees do have private lives and free-speech rights.

The case law, however, makes one point abundantly clear—that government as employer has a much freer hand in regulating employee speech than in regulating the speech of the public at large.

Although the First Amendment was designed to ensure a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” employees should take caution when speaking uninhibitedly.