Speaking Publicly, Take Two (Article)
Debra Roth, Partner, Shaw Bransford & Roth P.C., a federal employment law firm, wrote the Ask the Lawyer article, "Speaking Publicly, Take Two" for Federal Times in July 2014.
"A few months ago, I wrote on the topic of how most federal employees who are disciplined for publicly speaking out are found not to have a First Amendment protection on their speech. I also noted that a case was pending before the U.S. Supreme Court that might be a game changer. I’m back to report on the result. First, a refresher on the state of the law as it stood before the Supreme Court ruled last month.
Thirty years ago, the Supreme Court recognized that public employees, like all citizens, enjoy a constitutionally protected interest in freedom of speech. However, according to the Court, public employee free speech rights must be balanced against the need of government agencies to exercise “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”
In sum, speech by a federal employee (in a blog, on your Twitter account, on your Facebook page, in an op-ed), is protected by the First Amendment, and thus cannot be the subject of discipline, if you were speaking as a private citizen (not in your official capacity) and on a matter of public concern. When you speak out with the indicia of your official capacity on a matter of public concern, your speech can be regulated by your federal employer, including discipline. The rationale is found in the Supreme Court case, Garcetti v. Ceballos, 547 U.S. 410 (2006).
News source: Federal Times