Earlier this spring the U.S. Supreme Court reexamined the limitations to public employees’ freedom of speech when it heard oral arguments for the case of Lane v. Frank. The case involves an Alabama community college program director who testified before a federal grand jury that a state legislator had a no-show job at the institution. The school’s president later terminated the director, who claimed the termination represented retaliation for his grand jury testimony, in violation of his First Amendment right to freedom of speech.
The 11th U.S. Circuit Court of Appeals had found the director’s speech did not qualify as protected speech because his testimony “touched only on acts he performed as part of his official duties.” As the court noted, “To establish a claim of retaliation for protected speech under the First Amendment, a public employee must show, among other things, that he ‘spoke as a citizen on a matter of public concern.” The 11th Circuit’s decision hinged on the Supreme Court’s 2006 decision in Garcetti v. Ceballos (2006).
It will be interesting to see if the Supreme Court this summer in Lane clarifies or modifies its position in Garcetti, which has influenced several Merit Systems Protection Board (MSPB) decisions. But even before the Supreme Court delivered its decision in Garcetti, I – while serving as MSPB chairman – stressed why limitations on federal employees’ freedom of speech are important. In my dissenting opinion for Heaggans v. Department of Defense (2006), I said, “[I]n determining the free speech rights of government employees, a balance must be struck between the interest of the employees, as citizens, in commenting on matters of public concern, and the interest of the government, as an employer, in promoting the efficiency of the public services it performs through its employees.” When an employee’s speech upsets subordinate or co-workers and disrupts operations – even when it addresses a matter of public concern such as a military conflict, as was the case in Heaggans – the “agency’s need to manage its workforce outweighs the appellant’s interest in broadcasting her opinions to her subordinates,” I added.
As Lane illustrates, it is not easy to distinguish when someone is speaking as a public employee or as a citizen. And it can be just as difficult to draw a line between speech relating to a public concern and speech relating to a private concern. In the Board’s decision for Smith v. Department of Transportation (2007), to which I wrote a separate but concurring opinion, it noted that a “public concern” involves “any matter of political, social, or other concern to the community.” While the Board noted that discussions on race relations are matters of public concern and “entitled to the full protection of the First Amendment,” that is not the case with certain Equal Employment Opportunity (EEO) race discrimination complaints, “where the complaint is personal in nature and limited to the complainant’s own situation is not a matter of public concern.” Of course, EEO complaints alleging race discrimination are protected disclosures, but their protection comes from Title VII of the Civil Rights Act.
In this day and age, where the Internet enables people to easily make their private concerns public, federal employees need to remember that such technology does not necessarily turn a private concern into a public concern.
Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at email@example.com.