Speech Is Not Always Free For Federal Employees


Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

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 info@fedattorney.com.


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1 Comment

  1. While disappointed, I am personally not surprised by this current court’s decision in many areas consisted with their insular rulings.

    Calling out an employee on a “no show” job is in fact of a specific interest to the public. Particularly since the college is in part supported by public funding.

    It appears this Supreme Court is full of itself. Just keep Federal employees “quite” and turn a blind eye in the face of wrong doing the new normal in America.

    This court is a joke! What is needed to prove to this court or is necessary for these want to be gods that off-duty Federal employee when in the privacy of their home is that public citizen that has every right to speak on a matters of public concern.

    Just because a person works for the Federal government does not they give up their rights to speak on issues of wrong doing or abrogate their rights of personal free speech when off-duty.

    Meanwhile this court allows NSA and other government agencies to spy on millions of Americans without warranted reason or probable cause all because they can and will continue to do so until one of those one this court is caught in one of their own closets that becomes public.

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