2017 NYSUT Communications Award - Best Website
by Donna DiPalo - LUT Elementary School Vice President
Last August, I attended training as a communication ambassador. Part of that training included an important discussion about the freedom of speech rights of all teachers in our country. While educators have freedom of speech and self expression, as professionals we must mindful of the things we speak about when we are in public.
The following is a guide put together by NYSUT’s Legal Department to help you navigate the complexities of freedom of speech in the workplace. Keep in mind that due to the case-by-case nature of speech-related controversies, there is no single, official cut-and-dry rulebook on what you can and cannot say. All speech is open to individual interpretation. Therefore it is critical that all of us exercise professionalism and sound judgment when speaking in, and about, the workplace and the issues that impact our
Guidance for public employees about freedom of speech rights in the workplace
Questions and Answers
Q. Do public employees, including K-12 school teachers and college professors, retain their 1st Amendment right to the freedom of speech?
A. Yes, but their 1st Amendment rights are limited with respect to employment related issues.
Q. What is the legal test for determining what speech enjoys constitutional protection?
A. The question used to be whether the statements by a public employee were on matters of public concern.1 More recently, the United States Supreme Court further limited the scope of protection afforded to government-employee speech by parsing this test further into two separate inquiries (1) whether the subject of the employee’s speech is a matter of public concern; and (2) whether the employee spoke as a citizen rather than solely as an employee.2 If a public employee speaks “pursuant to their official duties” they are “not speaking as citizens for First Amendment purposes.”3 If the speech is both a matter of public concern and is deemed citizen speech (rather than employee speech) then the next question is whether the relevant government entity “had an adequate justification for treating the employee differently from any other member of the public based on thegovernment's needs as an employer.”4
The following topics have been deemed to be matters of public concern:
Exposure of government corruption where the public employee provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities;5 a district attorney’s hyperbolic statement made to a news magazine regarding the high crime rate in Brooklyn;6 a complaint to school district officials regarding coworker misconduct;7 and an English teacher’s blog that touched on school related subjects as well as purely personal subjects.8
The following topics have been deemed to not be a matter of public concern:
Filing of a retaliation lawsuit where the underlying speech was not protected by the First Amendment9 and the filing of a grievance complaining about the school’s failure to discipline a student who threw books at the teacher repeatedly.10
Practice Point: Always consider whether your speech is to redress personal grievances or whether it has a larger public purpose.
The following are cases where the courts found that the employees were acting pursuant to official duties and whose speech was, therefore, unprotected:
A payroll clerk's speech to her superiors about pay discrepancies11 and a code enforcement officer’s speech regarding the village’s building code and the applicability thereof.12
The following are cases where the courts found that the employees were speaking as citizens, and not as employees:
A police officer’s report to his commanding officers about an arrest quota policy —although it was not within his official duties and he chose to do so in the same way that was available to ordinary citizens who were regularly provided opportunities to raise issues with precinct commanders13 — and a teacher when speaking as a union representative.14
Practice Point: A court may find certain speech to be pursuant to official job duties even if the speech is not specifically identified as part of a job description. The determination will turn on the facts and circumstances surrounding the speech.
Practice point: A tenured teacher could be brought up on (Education Law § 3020-a) disciplinary charges for alleged insubordination for failing to properly execute her official duties. A probationary teacher could be fired without any protection, beyond the very minimal Section 3031 “fair dismissal” process. If a section 3020-a proceeding were to be commenced, the Office of General Counsel office would provide representation inaccordance with NYSUT policy.
Q. Is Internet speech (Facebook posts, Twitter, Instagram, operating and writing a blog/website etc.) protected?
The same analysis applies regardless of the media used.
In the following cases involving public employee speech on social media, the courts held that that the speech was unprotected because it was substantially disruptive to the workplace:
A teacher’s blog criticizing student behavior and performance in the classroom where the community backlash was such that the vast majority of parents requested a different teacher;15 a school security guard’s statement on Facebook about “black thugs” being involved in a police shooting was found to severely impede her ability to resolve disputes and maintain peace in the school in an unbiased fashion16; and a child protective worker’s complaints on Facebook critical of clients’ use of social welfare programs
where the government demonstrated that she could not be neutral, as required, in processing the cases and where the government determined it would have to disclose the posts as evidence of her bias in every child protective case.17
Q. What are some examples of protected speech?
Locals unions as well as individuals can protest, speak at board meetings, or write letters to the editor on a variety of educational issues.18 For example, standardized testing is certainly a matter of public concern. Therefore, speech by local leaders concerning this issue is protected so long as the individual is not speaking as a public employee. Another example is that individual teachers also likely have the right to opt their own children out, or to speak publicly against testing, so long as they are speaking as citizens and not as teachers. In one case, a court found that police officers’ act of “liking” the opposing candidate for sheriff on Facebook was protected speech.19
Practice Point: When writing to a newspaper you may identify your profession and place of employment, but you should note that you are writing as a member of the community.
Q. What if an employee speaks on subject matter related to their employment based on information gained through their employment?
A. The focus of the inquiry is on whether the speech is part and parcel of the employee’s job duties, rather than whether the employee gleaned information in the course of the
Q. When does the government's interest in effective and efficient services outweigh the employee’s free speech rights?
A. Speech that is disruptive to the workplace will likely not be afforded 1st Amendment protection. There is a sliding scale for this inquiry in that the more protected the speech (e.g., exposure of public corruption) the greater the disruption must be for the government in order to demonstrate that the speech should not be afforded constitutional protection.20
IN SUMMARY
Speech is protected when a member is speaking as a private citizen on matters involving public concern.
Speech is not protected when a member is speaking as a public employee on matters not involving public concern.
Over the past two years, there have been numerous forums and rallies held throughout the state in protest of over-testing and the implementation of Common Core. As noted above in this guide, individual teachers have the right “to opt their own children out, or to speak publicly against testing —so long as they are speaking as citizens.”
In asking NYSUT Legal to elaborate, it was explained as follows: “Assuming the teacher is not required to make those statements — (or in the case of a Letter to the Editor, write those letters) — as part of his/her ‘official duties,’ then he/she is speaking as a citizen, who also happens to be a teacher.”
Again, when it comes to speech — verbal or written or displayed — exercising sound judgment is critical. Keep the following in mind:
- Be professional.
- Be mindful of the language you are using.
- Does the speech you are using degrade the district, its employees or its students?
- Will it cause disruption to the workplace/classroom/district?
- Does your speech focus on a public concern, or is it a personal gripe?
- If you find yourself questioning whether what you are saying is acceptable or not, don’t say it.
This document is intended to provide a general overview of the law and provide to you guideposts to help ensure you stay within the limits of acceptable speech in the workplace. Again, this area of the law is nuanced and fact specific. If specific issues arise, please direct those inquires to Carl Korn or Matt Smith in NYSUTCommunications at extensions 6309 and 6050, respectively, and those inquiries will be
submitted to the NYSUT Legal Department.
[1] Pickering v. Bd. of Township High Sch. Dist. 205, 394 U.S. 563 (1968).
[2] Garcetti v. Ceballos, 547 U.S. 410 (2006).
[3] Id.
[4] Lane v. Franks, ––– U.S. ––––, 134 S.Ct. 2369 (2014).
[5] Lane v. Franks __ U.S. __, 134 S.Ct. 2369 (2014).
[6] Reuland v. Hynes, 460 F.3d 409 (2006).
[7] Sassone v. Quartararo, 598 F.Supp.2d 459 (2009).
[8] Munroe v. Central Bucks School District, __ F.3d __, No. 14-3509 (3d Cir. 2015).
[9] Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008).
[10] Weintraub v Bd. of Educ., 593 F.3d 196 (2d Cir. 2010).
[11] Ross v. Breslin, 693 F.3d 300, 306 (2d Cir.2012).
[12] O’Brien v. Yugartis, 54 F.Supp.3d 186 (N.D.N.Y. 2014).
[13] Matthews v. City of New York, 779 F.3d 167 (2015).
[14] Pekowsky v. Yonkers Bd. of Educ., 23 F. Supp.3d 269 (S.D.N.Y. 2014).
[15] Munroe v. Central Bucks School District, __ F.3d __, No. 14-3509 (3d Cir. 2015).
[16] Czaplinski v. Bd. of Educ. Of the City of Vineland, __ F.Supp.3d __, 2015 WL 1399021 (D. New Jersey).
[17] Shepherd v. McGee, 986 F.Supp.2d 1211 (D. Oregon 2013).
[18] Pickering v. Bd. of Township High Sch. Dist. 205, 394 U.S. 563 (1968).
[19] Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013).
[20] Miller v. Clinton County, 544 F.3d 542, fn. 2 (3d Cir. 2008), citing Connick v. Myers, 461 U.S. 138, 146 (1983).