The First Amendment to the U.S. Constitution says that “Congress shall make no law…abridging the freedom of speech.” This means the government cannot retaliate against you for criticizing a policy or elected official. What if you happen to work for the government? Can your supervisor discipline or fire you for criticizing city policy, even if you do so in your off-hours?
The answer to this question is complicated. In a 2006 decision, the U.S. 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.” When employees speak purely in their capacity as “private citizens” about a matter of “public interest,” they are protected from retaliation or wrongful termination.
Court: Police Officer's Criticism at Union Meeting Protected Speech
The line between “official duties” and “private citizen” is not always clear. Recently, the U.S. Second Circuit Court of Appeals had to figure out where the line existed in the case of a police officer who criticized department management and policies at a union meeting.
The plaintiff was vice president of the union representing officers of the Yonkers Police Department (YPD). Apparently, he did not get along with the president. During a union meeting, the plaintiff criticized the president's “close relationship” with the city's police commissioner, according to court records. The plaintiff specifically took issue with the commissioner's “decision to discontinue several police units,” which the plaintiff believed would “adversely affect the YPD” and its ability to protect the public.
In response to these criticisms, the plaintiff said his supervisor ordered him to stop and threatened to transfer him if he did not. The plaintiff said he defied these warnings and, at a subsequent union meeting, requested a “no-confidence” vote in the police commissioner. Department officials then proceeded to retaliate against the plaintiff, he alleged, which included denying him overtime pay and transferring him to a “less desirable” assignment.
The Second Circuit determined that, under the facts presented, the plaintiff's criticisms of the commissioner “did not fall within his employment responsibilities” and were therefore protected under the First Amendment. The Court did not, however, go so far as to say that “when a person speaks in his or her capacity as a union member, he or she speaks as a private citizen.” But the Court noted that the plaintiff's “criticisms of cuts in police manpower” and “his call for a no-confidence vote” in the commissioner “qualified as statements on matter of public concern.”
Unfortunately, the appeals court held that despite the alleged violation of the plaintiff's First Amendment rights, he was barred from suing the city and various officials because they enjoy official immunity from civil suits in this context. The only defendant the plaintiff may still continue to seek damages against is the union president, who is accused of participating in the illegal retaliation.
Get Advice from a New York Employment Retaliation Lawyer
Employee rights in the context of government employment is a complex matter. An experienced New York employment law attorney can help answers questions you may have about the scope–and limits–of your ability to speak while at work. Contact the Law Offices of White, Nisar & Hilferty, LLP, to speak with someone today.