The Dobbs Decision: First Amendment Considerations

The Court’s decision in Dobbs has already resulted in a variety of protests, and employers, both public and private, must consider whether and how expressions of opinion about the Dobbs decision will be permitted in the workplace and in our schools.  Significantly, the normal rules apply, and a brief reminder of those rules may be helpful.  

Public employees have free speech rights that derive from the First Amendment. Employees of private employers may have free speech protections based on state law, such as Conn. Gen. Stat. § 31-51q in Connecticut, which confers certain free speech protections for employees in the private sector.  Generally speaking, speech is protected when (1) it relates to a matter of public concern, and (2) the importance of the speech outweighs any disruptive impact of the speech.  Clearly, the Dobbs opinion raises an issue of public concern.  Accordingly, expressions of opinion (one way or the other) outside of the workplace will be protected speech, even if vehemently stated, except in extreme cases that involve threats of violence or disruption.  

In the workplace, the rules are different, and whether such speech will be allowed (in the form of signs or buttons) will depend on established expectations and also state law.  The workplace is not typically a forum for free speech, and employers are free to enforce expectations that prohibit such employee speech in general without regard to the content of the speech.  However, if an employer has permitted such personal speech in the workplace, it must be careful not to prohibit speech about the Dobbs opinion unless and until the speech becomes disruptive.  Connecticut law has some other peculiarities when it comes to free speech, so employers should seek legal advice if and when this become an issue.

In our schools, students retain their free speech rights as well, and they are free to speak out or wear buttons or T-shirts regarding this matter, subject to the following limitation:  When school administrators reasonably forecast material disruption or substantial interference with the educational process, they may restrict student speech.  The disruption standard is high, however, and school officials should be cautious before moving to restrict student speech concerning this case.

Visit our Dobbs Decision Resource Center for updates on how the landmark decision impacts health care providers, insurers, employers and individuals.