As a federal employee, you are in a unique position. On one hand you represent the government and its interests. On the other, you are a private citizen with constitutional rights, such as freedom of speech. Unfortunately, this duality can make it complicated when your personal views conflict with the government’s and you make others aware of it.
With certain exceptions, as a federal employee, your agency may take disciplinary actions against you (or even terminate your employment) if you say or write something that it disapproves of. You may wonder how this is so if you have a constitutionally guaranteed right to freedom of speech. The reason for this is that freedom of speech is not absolute. As a result, if you communicate something that is not protected by the First Amendment, you may be disciplined for doing so.
What type of speech is allowable?
In order for speech to be protected, it must be related to a matter of “public concern.” The question of whether a given type of speech fits into this category is a very complicated one that continues to be interpreted by the courts. However, courts generally agree that speech is a matter of public concern if it relates to social, political or other matters of concern to the community.
As a result, if you say or write something that is critical of your employer, but relates to a matter of public concern, (e.g. a letter to a newspaper editor that is critical of how your agency uses tax money), you may not be disciplined for doing so. However, if the content of your speech deals with matters such as personnel complaints or other internal grievances, for example, you are not protected because these matters are not of a public concern.
Public concern is only the beginning
Even if your speech relates to a matter of public concern, it does not necessarily mean that your speech is protected. Your speech will be protected if your interest in making comments on the matter in question outweighs the government’s interest in providing efficient public service. To determine this, a court will consider several factors such as:
· Whether the speech is disruptive
· Whether the speech impacts your ability to do your job
· Whether you made the speech as a private citizen or as part of your job
If the comments were made within the scope of your job duties, is disruptive or negatively affects your ability to carry out your job duties, it is much less likely that your speech will be protected.
Facing discipline? Get legal help
If you are facing discipline for something you said or wrote, it is wise to consult with an experienced federal employment law attorney as soon as possible. The attorneys at Passman & Kaplan, P.C. are recognized leaders in this specialized legal area. We will zealously challenge the allegations against you and ensure that you receive the best possible outcome.