First Amendment — Free Speech Clause: Public Employee Speech and Government as Employer

Amdt1.7.9.1 Loyalty Oaths

An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates unlawful or disloyal action.

Following the Civil War, the state and federal governments adopted test oaths, which the Supreme Court generally voided as ex post facto laws and bills of attainder.¹ Accepting the state court construction that the law required each candidate to “make oath that he is not a person who is engaged ‘in one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt,” the Court unanimously sustained the provision in a one-paragraph per curiam opinion.² Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization, with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party.³ Writing for the Court, Justice Tom Clark perceived no problem with the inquiry into Communist Party membership but cautioned that no issue had been raised whether an employee who was or had been a member could be discharged merely for that reason.⁴ With regard to the oath, the Court did not discuss First Amendment considerations but stressed that it believed the appropriate authorities would not construe the oath adversely against persons who were innocent of an organization’s purpose during their affiliation, who had severed their associations upon knowledge of an organization’s purposes, or who had been members of an organization at a time when it was not unlawfully engaged.⁵ Otherwise, the oath requirement was valid as “a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty” and as being “reasonably designed to protect the integrity and competency of the service.”⁶

In the following Term, the Court sustained in Adler v. Board of Education a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated.⁷ The statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification. Justice Sherman Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the state in its public school system except upon compliance with the state’s reasonable terms. He stated: “If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.”⁸ A state could deny employment based on a person’s advocacy of overthrow of the government by force or violence or based on unexplained membership in an organization so advocating with knowledge of the advocacy.⁹ With regard to the required list, the Justice observed that the state courts had interpreted the law to provide that a person could rebut the presumption attached to his mere membership.¹⁰

The same year, the Court invalidated an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment “solely on the basis of organizational membership.”¹¹ Stressing that membership might be innocent, that one might be unaware of an organization’s aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims.¹² But subsequent cases reiterated the power of governmental agencies to inquire into the associational relationships of their employees for purposes of determining fitness and upheld dismissals for refusal to answer relevant questions.¹³ In Shelton v. Tucker,¹⁴ however, a 5-4 majority held that, although a state could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the state’s interests, and had a considerable potential for abuse.

The Court relied on vagueness when loyalty oaths aimed at “subversives” next came before it. In Cramp v. Board of Public Instruction,¹⁵ it unanimously held an oath too vague that required one to swear, among other things, that “I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party.” Similarly, in Baggett v. Bullitt,¹⁶ the Court struck down two oaths, one requiring teachers to swear that they “will by precept and example promote respect for the flag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government,” and the other requiring all state employees to swear, among other things, that they would not “aid in the commission of any act intended to overthrow, destroy, or alter or assist in the overthrow, destruction, or alteration” of government. Although couched in vagueness terms, the Court’s opinion stressed that the vagueness was compounded by its effect on First Amendment rights and seemed to emphasize that the state could not deny employment to one simply because he unintentionally lent indirect aid to the cause of violent overthrow by engaging in lawful activities that he knew might add to the power of persons supporting illegal overthrow.¹⁷

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell¹⁸ involved an oath that as supplemented would have been violated by one who “knowingly and willfully becomes or remains a member of the communist party. . . or any other organization having for its purposes the overthrow by force or violence of the government” with “knowledge of said unlawful purpose of said organization.” The law’s blanketing in of “knowing but guiltless” membership was invalid, wrote Justice William O. Douglas for the Court, because one could be a knowing member but not subscribe to the illegal goals of the organization; moreover, it appeared that one must also have participated in the unlawful activities of the organization before public employment could be denied.¹⁹ Next, in Keyishian v. Board of Regents,²⁰ the oath provisions sustained in Adler²¹ were declared unconstitutional. A number of provisions were voided as vague,²² but the Court held invalid a new provision making Communist Party membership prima facie evidence of disqualification for employment because the opportunity to rebut the presumption was too limited. It could be rebutted only by denying membership, denying knowledge of advocacy of illegal overthrow, or denying that the organization advocates illegal overthrow. But “legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations.”²³ Similarly, in Whitehill v. Elkins,²⁴ an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.

Loyalty oath cases from the 1970s reflected the heightened constitutional protections announced in Keyishian. In Connell v. Higginbotham,²⁵ the Court invalidated an oath provision reading “that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence” because the statute provided for summary dismissal of an employee refusing to take the oath, with no opportunity to explain that refusal. Cole v. Richardson²⁶ upheld a clause in an oath “that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method” upon the construction that this clause was mere “repetition, whether for emphasis or cadence,” of the first part of the oath, which was a valid “uphold and defend” positive oath. More broadly, as Keyishian suggests and as discussed in subsequent essays, the Court has rejected the Adler rationale that public employment may be subject to unreasonable conditions because there is no right to public employment.²⁷ Instead, the controlling principle now is that government may not deny employment or other benefits on a basis that infringes a person’s constitutionally protected interests.²⁸

Amdt1.7.9.2 Political Activities and Government Employees

Abolition of the “spoils system” in federal employment brought with it restrictions on political activities by federal employees. In 1876, federal employees were prohibited from requesting from, giving to, or receiving from any other federal employee money for political purposes, and the Civil Service Act of 1883 more broadly forbade civil service employees to use their official authority or influence to coerce political action of any person or to interfere with elections.¹ By the Hatch Act, federal employees, and many state employees as well, are forbidden to “take any active part in political management or in political campaigns.”² As applied through the regulations and rulings of the Office of Personnel Management, formerly the Civil Service Commission, the Act prevents employees from running for public office, distributing campaign literature, playing an active role at political meetings, circulating nomination petitions, attending a political convention except as a spectator, publishing a letter soliciting votes for a candidate, and all similar activity.³ The question was whether government, which may not prohibit citizens in general from engaging in these activities, could nonetheless so control the off-duty activities of its own employees.

In United Public Workers v. Mitchell,⁴ the Court answered in the affirmative. While the Court refused to consider the claims of persons who had not yet engaged in forbidden political activities, it ruled against a mechanical employee of the Mint who had done so. The Court’s opinion, by Justice Stanley Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights,⁵ but it based its decision upon the established principle that no right is absolute. The standard by which the Court judged the validity of the permissible impairment of First Amendment rights was a due process standard of reasonableness.⁶ Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell.⁷

In Civil Service Commission v. National Association of Letter Carriers, however, a divided Court, reaffirming Mitchell, sustained the Act’s limitations upon political activity against a range of First Amendment challenges.⁸ The Court emphasized that the interest of the government in forbidding partisan political activities by its employees was so substantial that it overrode the rights of those employees to engage in political activities and association.⁹ The issue in Letter Carriers, however, was whether the language that Congress had enacted, forbidding employees to take “an active part in political management or in political campaigns,”¹⁰ was unconstitutional on its face, either because the statute was too imprecise to allow government employees to determine what was forbidden and what was permitted, or because the statute covered conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. With respect to vagueness, the plaintiffs contended and the lower court had held that the quoted proscription was inadequate to provide sufficient guidance and that the only further elucidation Congress had provided was in a section stating that the forbidden activities were the same activities that the Commission had as of 1940, and reaching back to 1883, “determined are at the time of the passage of this act prohibited on the part of employees. . .by the provisions of the civil-service rules. . . .”¹¹ This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.

The Court held, on the contrary, that Congress had intended to confine the Commission to the boundaries of its rulings as of 1940 but had further intended the Commission by a process of case-by-case adjudication to flesh out the prohibition and to give content to it. The Commission had done that. It had regularly summarized in understandable terms the rules that it applied, and it was authorized as well to issue advisory opinions to employees uncertain of the propriety of contemplated conduct. “[T]here are limitations in the English language with respect to being both specific and manageably brief,” said the Court, but it thought the prohibitions as elaborated in Commission regulations and rulings were “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interests.”¹² There were conflicts, the Court conceded, between some of the things forbidden and some of the protected expressive activities, but these were at most marginal. Thus, some conduct arguably protected did, under some circumstances, so partake of partisan activities as to be properly proscribable. But the Court would not invalidate the entire statute for this degree of overbreadth.¹³ Subsequently, in Bush v. Lucas¹⁴ the Court held that the civil service laws and regulations constitute a sufficiently “elaborate, comprehensive scheme” to afford federal employees an adequate remedy for deprivation of First Amendment rights as a result of disciplinary actions by supervisors, and that therefore there is no need to create an additional judicial remedy for the constitutional violation.

The Court has also addressed the balance between elected officials’ First Amendment rights to speak about matters of public concern and elected bodies’ rights to censure objectionable speech. In Houston Community College System v. Wilson, a community college Board of Trustees censured one of its elected members after he made public comments that the Board found “inappropriate,” “reprehensible,” and “not consistent with the best interests of the College.”¹⁵ The Board member claimed the censure violated his First Amendment right to be free from government retaliation for engaging in protected speech.¹⁶ While acknowledging that elected representatives, like the Board member, have the right to speak freely on government policy, the Court recognized that the censure issued by the other elected representatives was also a form of protected speech.¹⁷ According to the Court, the Board member could not use his First Amendment rights “as a weapon to silence other representatives seeking to do the same.”¹⁸ Although it concluded that the censure at issue did not violate the First Amendment, the Court explained its decision was a “narrow one” involving only a First Amendment retaliation claim regarding the “censure of one member of an elected body by other members of the same body.”¹⁹ As a result, claims involving other forms of discipline or punishment, such as expulsion or exclusion, may produce a different outcome.²⁰

Amdt1.7.9.3 Honoraria and Government Employees

In United States v. National Treasury Employees Union (NTEU),¹ the Court struck down an honoraria ban as applied to lower-level employees of the Federal Government. The Court distinguished the honoraria ban from the Hatch Act on the grounds that the honoraria ban suppressed employees’ right to free expression while the Hatch Act sought to protect that right.² The Court also observed that there was no evidence of improprieties in the acceptance of honoraria by members of the plaintiff class of federal employees.³ The Court emphasized further difficulties with the “crudely crafted” honoraria ban: it was limited to expressive activities and had no application to other sources of outside income, it applied when neither the subjects of speeches and articles nor the persons or groups paying for them bore any connection to the employee’s job responsibilities, and it exempted a “series” of speeches or articles without also exempting individual articles and speeches. These “anomalies” led the Court to conclude that the “speculative benefits” of the ban were insufficient to justify the burdens it imposed on expressive activities.⁴

Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech

While the government does not have complete freedom to restrict the speech of its employees, it does have some power. “[I]t cannot be gainsaid,” the Court said in Pickering v. Board of Education, “that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”¹ Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reflecting on the administration of the school system. The letter also contained several factual errors. “The problem in any case,” Justice Thurgood Marshall wrote for the Court, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”² The Court’s analysis suggested some factors that might be relevant in conducting the balancing test. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day-to-day personal contact, that problems of discipline or harmony among coworkers, or problems of personal loyalty and confidence, would arise.³ The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reflected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions of which the community should be aware. The Pickering Court stated: “In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”⁴

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,⁵ sustained the constitutionality of a federal law that authorized the removal or suspension without pay of an employee “for such cause as will promote the efficiency of the service” when the “cause” cited concerned speech by an employee. The employee charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, “is without doubt intended to authorize dismissal for speech as well as other conduct.”⁶ But, referencing its Letter Carriers analysis,⁷ it ruled that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statute all the myriad situations that arise in the course of employment, and inasmuch as the language used was informed by developed principles of agency adjudication coupled with a procedure for obtaining legal counsel from the agency on the interpretation of the law.⁸ Nor was the language overbroad, continued the Court, because it “proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the government as an employer. . . .We hold that the language ‘such cause as will promote the efficiency of the service’ in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad.”⁹

The Court clarified the Pickering inquiry in Connick v. Myers,¹⁰ involving what the Court characterized, in the main, as an employee grievance rather than an effort to inform the public on a matter of public concern. The employee, an assistant district attorney involved in a dispute with her supervisor over transfer to a different section, was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale. The Court found this firing permissible, stating: “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”¹¹ Whether an employee’s speech addresses a matter of public concern, the Court indicated, must be determined not only by its content, but also by its form and context.¹² Because one aspect of the employee’s speech did raise matters of public concern, Connick also applied Pickering’s balancing test, holding that “a wide degree of deference is appropriate” when “close working relationships” between employer and employee are involved.¹³ The issue of public concern is not only a threshold inquiry, but, under Connick, still figures in the balancing of interests: as the Connick Court stated, “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression” and its importance to the public.¹⁴

On the other hand, the Court has indicated that an employee’s speech may be protected as relating to matters of public concern even in the absence of any effort or intent to inform the public.¹⁵ In Rankin v. McPherson¹⁶ the Court held protected an employee’s comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the President’s policies—If they go for him again, I hope they get him. Indeed, the Court in McPherson emphasized the clerical employee’s lack of contact with the public in concluding that the employer’s interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee’s First Amendment rights.¹⁷

In City of San Diego v. Roe,¹⁸ the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s “expression does not qualify as a matter of public concern. . . and Pickering balancing does not come into play.”¹⁹ The Court also noted that the officer’s speech, unlike federal employees’ speech in United States v. National Treasury Employees Union (NTEU),²⁰ “was linked to his official status as a police officer, and designed to exploit his employer’s image,” and therefore “was detrimental to the mission and functions of his employer.”²¹ The Court, therefore, had “little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [that is, Pickering or NTEU].”²²

In Garcetti v. Ceballos, the Court held that there is no First Amendment protection—Pickering balancing is not to be applied—“when public employees make statements pursuant to their official duties,” even if those statements are about matters of public concern.²³ In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and he sued. The Supreme Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”²⁴ The fact that the employee’s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.²⁵ Rather, the “controlling factor” was “that his expressions were made pursuant to his duties.”²⁶

In distinguishing between wholly unprotected “employee speech” and quasi-protected “citizen speech,” sworn testimony outside of the scope of a public employee’s ordinary job duties appears to be “citizen speech.” In Lane v. Franks,²⁷ the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator’s employment in the government program. The employee challenged the termination on First Amendment grounds.

The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test.²⁸ The Court noted that “[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth.”²⁹ In so holding, the Court confirmed that Garcetti’s holding is limited to speech made in accordance with an employee’s official job duties and does not extend to speech that merely concerns information learned during that employment. The Court in Lane ultimately found that the plaintiff ’s speech deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer.³⁰

In a 2022 case, the Supreme Court expressly connected the issue of public employee speech to the related issue of government speech,³¹ saying that the Free Speech Clause question in Kennedy v. Bremerton School District turned on whether a football coach had acted “in his capacity as a private citizen,” or whether instead his actions “amount[ed] to government speech attributable to” his public employer.³² The school had disciplined the coach for praying at the 50-yard line immediately after football games, while he was still on duty.³³ The parties agreed that the coach’s prayer implicated a matter of public concern, but the school argued his speech was unprotected under Pickering because he was speaking in his official capacity as a public employee.³⁴ The Court held instead that the coach’s prayers were private speech, stating the speech was not within the scope of his ordinary duties and he “was not seeking to convey a government-created message.”³⁵ The Court noted further that during this postgame period, employees “were free to attend briefly to [other] personal matters” and students were engaged in other activities, suggesting the coach’s “prayers were not delivered as an address to the team, but instead in his capacity as a private citizen.”³⁶ Although the coach was on duty and his prayers were delivered at his workplace, these facts were not dispositive to the analysis.³⁷ Ultimately, the Court held that the school had not met its burden to justify the restrictions on the coach’s religious speech.³⁸

The protections applicable to government employees have been extended to independent government contractors, the Court announcing that “the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their protection.”³⁹

In sum, although a public employer may not muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can,⁴⁰ the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of “public concern,” then Connick applies and the employer is largely free of constitutional restraint.⁴¹ If the speech does relate to a matter of public concern, then unless the speech was made by an employee pursuant to his duties, Pickering’s balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties⁴² balanced against the employee’s First Amendment rights.⁴³ Although the general approach is easy to describe, it has proven difficult to apply.⁴⁴ The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for “whistleblowers” add to the mix.⁴⁵