Public employee speech and consequence of unlawful action

When does a public employee’s First Amendment rights give way to an employer’s right to suspend or terminate the employee?


Police departments across the United States are currently investigating whether their officers were present during the Capitol siege on January 6. This is a necessary internal investigative step for law enforcement agencies to undertake in the aftermath of the unprecedented attack on the Capitol.

In addition to the obvious criminal aspects of what occurred, there is also the tragic line of duty death of a Capitol police officer to consider. A multitude of crimes took place at the Capitol and for a time it was an active crime scene. Investigations are underway and police departments inquiring into the presence of their members at the Capitol Building on January 6 is an important part of the overall investigation.

This brings me to the legal question I have been asked since the Capitol attack: When does a public employee’s First Amendment rights give way to an employer’s right to suspend or terminate the employee?

A multitude of crimes took place at the Capitol Building and for a time it was an active crime scene.
A multitude of crimes took place at the Capitol Building and for a time it was an active crime scene. (AP Photo/Jose Luis Magana)

First Amendment rights of public safety officers

In the past, I have written and provided training regarding the First Amendment rights of public safety officers. Additionally, I have represented police officers in disciplinary cases wherein the officer’s First Amendment rights were at the core of the charge.

Sometimes there was a successful result, but more often the officer crossed the line of permissible speech and action. Whether it be verbal comments made at a legislative session, social media posts, or visual depictions of officers in and out of uniform, I deliver a consistent message to readers, trainees and clients, which is that no right – except the religious right of belief – is absolute. All too often in the practice of law, I have found the First Amendment to be one of the most misunderstood and yet the most often asserted right in defense of a comment made or action taken by a police officer.

Government restriction of speech

Rights are not absolute. The protections found in the Bill of Rights provide limits upon the federal government and by extension, under a legal process known as incorporation, most of these rights apply to the states. The government cannot prohibit free speech, assembly, or petition to redress grievances. Nevertheless, the U.S. Supreme Court has permitted the government to place reasonable time, place and manner restrictions on speech. This simply means that the government, under specific guidelines, can prescribe when, where and how individuals express themselves.

The guidelines set by the U.S. Supreme Court require government restriction of speech meets a four-part test:

  1. The restriction must be narrowly tailored;
  2. It has to be content-neutral;
  3. It must serve a significant governmental interest;
  4. The government must allow for alternate means of communication or expression.

Limited public forums

Public forums, like a street or a park, are subject to the least amount of restriction. However, the U.S. Supreme Court in Cox v. Louisiana (1965) said no one had a right to demand a group meeting in the middle of Times Square during rush hour.

The Capitol building, despite contrary erroneous assertions on social media, is a limited public forum. The U.S Supreme Court in the 1983 case of Perry Education Association v. Perry Local Educators Association outlined the three types of government property for First Amendment purposes: traditional public forums, limited public forums and nonpublic forums. As a limited public forum, the U.S. Capitol is not open to all aspects of individual speech. The government is provided a wider berth in regulating access and speech in a limited public forum. Those who forced their way into the Capitol on January 6 committed crimes of burglary, criminal trespass, assault, larceny, disorderly conduct, and ultimately, some of them will likely be implicated in murder.

Police officers who were present at the Capitol on January 6 to simply express their views and gather with like-minded individuals would have been exercising a First Amendment right provided that was all they were doing. If they participated in any manner in the storming of the Capitol their conduct will lose constitutional protection as free speech. Speech can be regulated if it is 1) directed at inciting or producing imminent lawless action, and 2) is likely to incite or produce such imminent lawless action (Brandenburg v. Ohio, 1969). Officers who are found after departmental investigation to have advocated or participated in the breach of the Capitol, even if actual entry was not made by them, will find themselves facing discipline and likely termination.

Ethics and conduct

Law enforcement officers take an oath to protect and serve and abide by the Constitution of the United States. In addition to being guided by the laws of their respective jurisdiction, officers are subject to departmental rules and regulations, codes of ethics and a general code of conduct.

The off-duty behavior of an officer is as much of a concern for municipal and department managers as is an officer’s on-duty actions. Police officers are considered public figures under the law. An individual officer’s conduct can have a detrimental impact on an agency’s image and may negatively impact the officer’s ability to properly carry out their duties.

The law concerning public employee free speech centers on the Pickering-Connick (Pickering v. Board of Education, 1968; Connick v. Myers, 1983) balancing test, which first considers whether the employee speech is on a matter of public concern, which is described as a subject of significance or social importance. Public employee speech in the form of a private grievance is not constitutionally protected, especially if the speech is incendiary or offensive. But if the subject matter is deemed to be of public concern then the second part of the test is considered wherein a reviewing court balances the employee’s right to free speech against the employer’s right to an efficient, disruptive-free workplace.

In the 2006 case of Garcetti v. Ceballos, the U.S. Supreme Court ruled that when public employees make statements pursuant to their job duties they are not constitutionally protected. This means there is no balancing under the Pickering-Connick test when the speech is made as part of an officer’s employment.

Amid protected speech considerations there is the inescapable fact that a police officer died as the result of a felony assault. Laws of complicity are among the charging decisions prosecutors will ultimately confront. It will be a sad commentary if we come to find those who swore an oath as police officers are found to be involved.

Just as rights are not absolute, neither is employment as a police officer. Those officers present on January 6 who may be identified and whose actions are found to go beyond peaceful protest could find themselves seeking new employment. Existing case law will support the management decision. The profession should as well.

NEXT: Early lessons from the Capitol Building attack

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