The First Amendment is commonly understood as protecting the right to free speech. But the First Amendment does not impact the ability of private citizens and organizations to punish or limit speech. This is why it’s permissible for a private employer to fire an employee for engaging in speech the employer disapproves of – private employers have the right to manage their employees as they see fit.

The situation grows more complicated when the government is the employer. Like any other employer, the government has a legitimate interest in maintaining efficient offices and agencies, which often requires managing and disciplining employee speech. At the same time, however, public sector employees have a protected right to free speech under the First Amendment.

The law attempts to balance these two interests noted above by differentiating between private and official speech. The First Amendment only protects government employees when they are speaking as a private citizen about matters of public concern. If the government employee’s speech is instead part of their official job duties, they can be disciplined or fired for what they say.

Private v. Official Speech Test

In its most recent opinion on this subject, King v. Board of County Commissioners, Polk County, the Eleventh Circuit reaffirmed its commitment to the private v. official speech test.

Plaintiff Dr. Nancy King worked under contract for Polk County, Florida, where she was responsible for determining whether firefighter applicants were medically qualified. In 2014, the medical clearance process for one applicant was mishandled, and Dr. King had strong feelings about how the process should have gone and who should have been making clearance decisions. She aired these feelings to her colleagues and in two private meetings with the county manager. Subsequently, her contract with the county was put out for bids, and her bid was not selected. Dr. King then sued the county and others, alleging that they violated her First Amendment rights by retaliating against her for engaging in protected speech.

Speech that Owes its Existence to Professional Responsibilities is Not Protected by the First Amendment

The Eleventh Circuit concluded that Dr. King’s complaints could not be characterized as private speech. Her complaints were made pursuant to her role as occupational health director tasked with making recommendations on whether applicants are medically qualified. It is precisely because of Dr. King’s job that she became aware of the issues with J’s application and voiced concern. The Court reiterated its long-standing rule in this context:

If the speech owes its existence to a public employee’s professional responsibilities, that indicates the speech is not protected by the First Amendment.”

Furthermore, the Court found it significant that Dr. King never spoke publicly. She was not a concerned citizen who happened to become aware of problems and decided to do something about it. Dr. King was doing her job, and her speech in that respect cannot be protected.

Practice Pointer for Government Employers

King is helpful to the extent it provides further precedent that helps establish the boundaries of this issue. But ultimately the question of whether a government employee was speaking as a private citizen on a matter of public concern or in their official capacity is a fact intensive question.

Given the uncertainly in this area, it is recommended that any governmental employer consult with counsel before taking disciplinary action against employee speech. If you have any questions or concerns regarding this issue, please feel free to contact me at kyle.dudek@henlaw.com or by phone at 239-344-1237.