Expressive Speech and the Law

Enforcement OfficerIACP

Legal Officers Section

2003

The Expressive Employee

Exercise Facts: Smith is employed as a police officer and works as a

computer technician. On at least two occasions he anonymously mailed from his home anti-black and anti-semitic statements in return envelopes. The materials were referred for investigation to a neighboring police department who determined that Smith was the source. Smith was charged with violation of a internal rule and at his hearing asserted that the mailings were a form of protest.

What would your ruling be? What is your justification for your ruling?

1st Amendment “Congress shall make no law . . . Abridging

the freedom of speech; or the right of people peaceably to assemble, and to petition the government for a redress of grievances.”

Unprotected

Limited Protection

Highly Protected

Types of Expression /Relation to Governmental

Restrictions

ObscenityThreats bodily harm

Policp

Political speech

Protection From Governmental Restriction

Expression in Gov’tworkplace

True Threat

True threat (Order to Disperse) Those forms of intimidation designed to inspire fear of

bodily harm. Thus just as a State may regulate only that

obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Virginia at 123 S.Ct. 1536 (2003)

The Boundaries

PoliceMilitary

Freedom of Expression_ +

Civilian

Efficient Performance of Governmental Service

+ _

Free Trade of Ideas

Military The military need not encourage debate or

tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps. Goldman v. Weinberger, 106 S.Ct. 1310

Civilian Civilian / Public Forum

Restriction of Content subject to strict scrutiny

The means chosen (governmental restriction) must be strictly tailored to promote a compelling governmental interest.

Accommodation of Civilian Expression in Public Forum

"These later decisions have fashioned the principle that the constitutional guarantees of free speech . . . do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg 89 S.Ct 1827

The Police Officer and Expression Within the Workplace

Police Officers Speech

PrivateConcern

PublicConcern

Officer does not lose his/her 1st Amendment right to comment on matters of pubic concern by virtue of being employed by the government

Competing InterestsPickering Test

Interests of employee as a citizen in commenting on

matters of public concern

Interests of State, as an employer, in promoting public Services it performs

through its employees

Competing InterestsPickering Test/Rationale

The test allows the government a degree of control over its employees to permit it to provide services efficiently and

effectively

Ensures that public employers do not use their authority to silence discourse, not because it hampers public functions, but simply because superiors disagree

with the content of the speech

Public and Private ConcernsThe Public Concern

Two Step Test

Does the speech involve a matter of public concern?

“Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and the context

of a given statement, as revealed by the whole record”

Matter of Public concern

Any matter of political, social, or other concern to the community

Examples of Private and Public Concerns

Private Questionnaire regarding

office transfer policy. Connick 103 S.Ct. 1684

Personal Complaints about internal working conditions.

Tang 163 F.3d 7(1st Cir 1998)

Change in an employee’s duties.

U.S v. Nat’l Treasury Union, 115 S.Ct 1003

Employee speech which transpires entirely off duty or in non-work areas of the office.

Examples of Public Concerns Report critical of

employer’s policies Police commissioners

criticism of police department

Personnel director’s truthful testimony before state senate committee

Legal aid attorney’s criticism of supervisor’s policies.

Problem Fact specific

Unless the speech is a clear example of an expression of a private concern – it is best to treat that speech as a public concern and be prepared to demonstrate that it impaired the effectiveness of the Department.

Warning

Why the 1st step is problematical

Preparation for retaliation claim / Mixed Content Elements

Private or Public Adversely affect efficiency of workplace The protected speech was a substantial or

motivating factor in the adverse action. Banks v. Wolfe, 330 F.3d 888(6th Cir. 2003)

2nd Step

Even if speech is a mater of public concern, then the government must showthat the speech so threatens the government’s effective operation

that discipline of the employee is justified

Effective Operation of the Workplace

Does the Speech harm the effective functioning of employer’s enterprise?

Harm to Effective Operation of the Department

When and where were the statements made? What is the employee’s assignment? Does the employee occupy a position of rank? Is the employee in a supervisory or policy making role? Did the statement actually effect the ability to operate or

only place it in jeopardy? Did it engender mistrust in the community?

Assessing the Employers Legitimate Interest in Discipline

Workplace efficiency

Impairs discipline by

superiors

Disrupts harmonyamongst

Co-workers

Breach of Confidence

loyalty

Impedesspeaker’s

performance

Public trust

Public Trust “The effectiveness of a city’s police department depends on the

perception in the community that it enforces the law fairly, even-handedly, and without bias . . . If the department treats a segment of the population of any race, religion, gender, national origin, sexual preference, etc., with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in the community is impaired.”

Papps v. Giuliani, 290 F.3d 143(2nd Cir.2002)

A policeman may have a constitutional right to speak his mind but he has no constitutional right to be a police man.

McAuliffe v. Mayor of New Bedford29 N.E. 517(1892)