Free Speech

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There is no such thing as an unimportant Supreme Court of the United States (SCOTUS) opinion. As someone who vigorously defends the media in First Amendment cases, I eagerly awaited the SCOTUS opinion in Maloney Area School District v B.L. The opinion was rendered on June 23, 2021, and I quickly read it looking for nuggets I could use in the representation of my clients. Although the case did not involve media, the 8-1 (Justice Thomas dissenting) decision importantly upheld First Amendment protections.

Defenders of the First Amendment will hail the decision as another important victory for free speech and will no doubt cite to the opinion authored by Justice Breyer and the significant statements concerning the importance of the First Amendment:

  • “America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect ‘the marketplace of ideas.’ That marketplace must include the protection of unpopular ideas, for popular ideas have less need for protection.”
  • “The First Amendment protects ‘even hurtful speech on public issues to ensure that we do not stifle public debate.’”

Take-Away

Continue Reading SCOTUS Decision on First Amendment Rights: Who Really Won?

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

Continue Reading Airing of the Grievances: 11th Circuit Declines to Extend First Amendment Protection to Employee’s Work Complaint