What are My First Amendment Rights as a Government Employee?

The First Amendment to the U.S. Constitution guarantees every American's right to freedom of speech. How far does “free speech” extend to statements you make at work? If you work for a state or city agency, for example, can you be fired for making statements with which your bosses disagree?

The answer to this question is quite complicated. A public employer may be liable for wrongful termination if it fires an employee for engaging in “protected speech,” i.e. speech they make “as a citizen upon matters of public concern.” But speech regarding non-public matters does not enjoy the same degree of a First Amendment protection, meaning an employer may be justified in disciplining or terminating an employee on the basis of such “private” statements.

Court Holds University Officials Immune from Lawsuit Alleging Wrongful Termination

There are other legal barriers to wrongful termination claims based on free speech. Recently, the U.S. Second Circuit Court of Appeals here in New York addressed such a case, Colvin v. Keen. The plaintiff worked as an admissions counselor for a public university. She sued a number of school's administrators in their individual and official capacities, alleging they terminated her for exercising her First Amendment rights.

Here is what happened. One day in 2011, the plaintiff participated in a lunchtime yoga class on campus. During the class, campus police officers entered the room and arrested a suspended employee who was also attending the class. The police said the employee was “trespassing.” The plaintiff, who is an attorney, identified herself as such and advised the employee of her Miranda rights–i.e., the rights to remain silent and speak with an attorney.

The university's director of human resources, one of the named defendants, subsequently criticized the plaintiff for acting “unprofessional” by “escalating tension” during the arrest and acting under “the assumption that the officers were acting improperly.” A few weeks later, the university president declined to renew the plaintiff's contract, although she remained employed by the school for approximately two years before she was finally terminated.

The plaintiff's lawsuit alleged the termination violated her civil rights, as it constituted retaliation because she “spoke up for” her former co-worker's constitutional rights. But a federal judge dismissed the lawsuit. The judge said the plaintiff could not show a “causal connection” between the yoga class incident and her firing two years later. More to the point, the plaintiff's speech was not protected under the First Amendment because it did not address a “matter of public concern.”

The Second Circuit affirmed the decision to dismiss the case, albeit for somewhat different reasons than the trial court. The appeals court held the defendants named in the lawsuit were “protected from both liability and the obligation to defend the case because of qualified immunity.” In plain English, public employees cannot be sued for “performing discretionary functions” of their jobs unless they violate some “clearly established statutory or constitutional right.” Here, the Second Circuit noted there was no “clearly established law that merely advising another of a constitutional right necessarily constitutes speech on a matter of public concern.”

Get Advice on Wrongful Termination Today

Wrongful termination cases are never easy, especially when they involve gray areas of the law such as free speech rights. If you have questions or concerns about your rights in the workplace and need advice from a qualified New York employment attorney, contact the Law Offices of Nisar Law Group, P.C., today.


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