Season 2, Episode 4: Free Speech in the Workplace

Tom Mooney: Yes, they do, but perhaps not as broad as they might think in the first instance.

Dan Schwartz: And what do you mean by that?

Tom Mooney: The Supreme Court has long recognized that public employees have free speech rights, but it's not at all unlimited. And specifically, to get in the door claiming protection, you have to say that you're speaking on a matter of public concern.

So, if someone's on social media trashing their colleague down the hall, that's not a matter of public concern. That's not protected speech so people don't understand that first they have to have been speaking on a matter of public concern. Only then do we enter what's called the balancing test where we look at the importance of the speech and then look at any negative impact of the speech. And so, through that balancing test, we decide, is it protected or is it not protected?

Dan Schwartz: Yeah, that's, I think, a really interesting point, which is people seem to think that the First Amendment protects all types of speech in the workplace, but I think, to your point, it has to be a matter of public concern. What are some other examples of what a public concern might be?

Tom Mooney: One of my favorite, and I have many favorite cases, but one of them is Ardith McPherson was a clerk in a police station, and over the radio came word that President Reagan was shot. She's just talking to her buddy, and she says- the next time they go for him, I hope they get him.

And that became a Supreme Court case Rankin v. McPherson because she was fired because the police chief happened to be walking by and a divided Supreme Court, 5/4 decided that her comment, I hope they get him, was a hyperbolic comment on a matter of public policy, and that's Reagan's policy toward welfare. It just shows that even something like the threshold question, is this a matter of public concern, can be the subject of litigation.

Dan Schwartz: Yeah, it's really interesting and I know in years past we've talked, I've had a case as well that went up that was applying the Connecticut statute 31-51q, which applies to the free speech considerations to the private workplace as well.

So, you're seeing both the First Amendment applications to public employees and 31-51q there as well. You talked next about the sort of balancing tests there. How might that come up in a public employee context?

Tom Mooney: A good example would be if a teacher has a criticism of the superintendent and they go on social media with that criticism. So, what is the importance of being able to speak freely about a person in the leadership role? That's an important right that people have. What is the negative impact? And teachers and superintendents rarely see each other. And so when you apply the balancing test to that case, I would say that's protected speech.

But conversely, if the assistant superintendent is making the same comment about his boss. I think the courts look at the impact of the speech, and one of the ways in which speech may not be protected is when it interferes with close working relationships. And there's a simple statement, a criticism of the superintendent and applying the balancing test, you might get a different result depending on who's doing the talking.

Dan Schwartz: We used to use examples years ago about someone writing a letter to an editor of a newspaper that would be your type of free speech. But I suppose with social media and all of its forms, we're seeing people talk about others in a different way than in years past. But social media posts are the type of thing that could be covered, right?

Tom Mooney: Oh, absolutely. That is now the public square in many ways. I'm old enough to remember letters to the editor, but now it really is a Facebook post or even Insta whatever that is.

Dan Schwartz: Yeah, and I think 31-51q, the state law here, also talks about the speech can't substantially or materially interfere with an employer's operations or an employee's job performance.

And that-we've seen that play out in private employer context. But I suppose in the public employer context, that balancing test really deals with some of those same notions, right?

Tom Mooney: Absolutely. And one important point to note back to your original question, what are the limits of free speech protection?

The Supreme Court again on a 5/4 vote back in 2006 ruled that when employees speak pursuant to duty as part of their job responsibilities, the First Amendment doesn't apply. And so, we have this circumstance and even now we get into definitional issues, what is or is not pursuant to duty but it took away the balancing test for a large amount of speech that occurs. And speaking as an employer advocate, I say that with some relief because anytime you balance, you're bringing values to the conversation and the values I have, the values a judge has, may differ. So, whenever we're under the balancing test, all we can do is predict with some trepidation that this is or is not speech that we can take action on.

And so we then of course, I think you were involved in complicating this whole line of analysis because we have in different contexts differences between the federal constitution and the state constitution. And so now we have to worry about both.

Dan Schwartz: Yeah, that's a great point. And the case that Tom is referencing was a case years ago, Schuman v. Dianon which I helped take up to the Supreme Court, which really for the, I think first time was really making it clear that employees free speech rights coexist. They exist in the First Amendment context, but the Connecticut constitution might have something to say about it as well and we've seen some cases since that time that make it clear that the Connecticut constitutional rights might be even broader, or at least as more whole than the First Amendment, right?

Tom Mooney: Oh, absolutely. Garcetti just shut the door on speech that's pursuant to duty. But under the 31-51q analysis and the Connecticut constitution, the courts have said, no, wait a minute – we – and I wonder how much of this is just ego, frankly, but – we're not going to follow the federal law because we have a state constitution and the state constitution, we interpret confers rights more broadly on employees, and I was a bit annoyed with this when I first heard about it because it just seemed to be an unnecessary complication. But as I've gotten used to the idea, what the court, the Supreme Court in Connecticut, said it's a modified balancing test, and we balance only when the speech implicates official dishonesty, serious wrongdoing, or a threat to public safety and health. So, although the theoretical construct was to broaden the Garcetti rule in that way was a bit frustrating I've not had a single circumstance where it's mattered.

Dan Schwartz: Yeah, I think sometimes us lawyers we can be worried about the hypothetical and then the practical sets in and we haven't really seen an influx of cases that I think might have been forecast at the beginning.

So, let's take just a simple example. Someone who works at McDonald's, for example, or another fast-food restaurant suddenly gets in their head that they think that the food being served isn't healthy and wants to make their voice known there. And they refuse to sell a product to customers. Is that going to be protected under free speech rights?

Tom Mooney: No, that person will be looking for another job because you have to look at the context of the speech and the impact on the enterprise. And that person is free not to work at McDonald's and say whatever he or she wishes to say. But if you're working at McDonald's that is inherently disruptive to the employer's enterprise for you as a McDonald's employee to be leveling that criticism.

Dan Schwartz: Yeah, and I would think in the case that I had in Schuman v. Dianon the court was pretty adamant that insubordination, flat out refusing to do your job, isn't speech at all but an action that isn't protected either. So, I think sometimes the free speech umbrella can feel large, but when you start to define it, it can be a little bit smaller.

One of the other things we talked about beforehand was the classroom as a public forum. And I know during a few years ago with the sort of Black Lives Matter, there were some issues about people wanting to express themselves in the classroom, maybe put up a poster as well. Where have things settled on that front?

Tom Mooney: Well, school officials have to be careful as to what they allow because when you allow speech of any sort that's not directly related to one's job responsibilities, then you are creating a forum. And you can say the classroom is not a forum for speech. The expressive activity, that is, the posters teachers put up, is curricular related. But as soon as you tolerate the other expressions, maybe a Yankees poster, anything that's not directly related to the curriculum, then you open the door to people expressing different views. This came up with some frequency with Black Lives Matter insignia posted in the classrooms. I don't know of any school district that picked that fight, but the danger that we would explain is that if you permit an expression that you think is wonderful, then you are opening the door to other expression that you may not think is so wonderful and that may create a disagreement in the classroom. Maybe some teacher thinks taxes are too high and the budget should be defeated. Once you've opened the door, then any kind of speech like that would be protected.

The one variation on this, it's an interesting one coming out of a Supreme Court case a couple years ago, the city of Boston would fly flags, and some Christian group wanted to have their flag flown, and they said, oh, wait a minute no, we're not going to let you do that. This is government speech, we're speaking, and the Supreme Court said you never spoke before you had 249 other flags that you flew and you never exercised editorial control. You never considered it to be your speech. So you lose. The issue of government speech is a whole separate concept. Government does have the right to speak, but they have to speak intentionally.

Dan Schwartz: Getting back to your first example you were using, I don't have a problem if anyone wants to put up Yankees posters there, even after the bad season, that they have Red Sox posters, maybe.

But Yankees posters, we'd give 'em a pass on. I wouldn't necessarily rely on that that I might be a little biased. Look, Tom, thanks so much for joining us. I know you write a column, I think on a monthly basis. Where can people find that?

Tom Mooney: That's Legal MailBag and actually, the monthly column is See You in Court in the CABE Journal. And then I write a weekly column for the Connecticut Association of Schools called Legal Mailbag. It was my ambition, which I think I've achieved of being the Ann Landers of School on Connecticut.

Dan Schwartz: Tom is underselling it, as always, but it poses some great hypotheticals and great examples. The Nutmeg Board of Education gets a lot of use there.

Tom, thanks again for joining us. I can, again, highly recommend his book on school law. which you can find at all the great booksellers around here. Thanks again. And finally, to our listeners thanks again for joining us on another episode of From Lawyer to Employer. We've got a lot more coming up, so be sure to hit the subscribe button. And if you'd be so kind to post a review, we would love it. Thanks again.

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