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Speech and the Public Employee

NCJ Number
FBI Law Enforcement Bulletin Volume: 77 Issue: 8 Dated: August 2008 Pages: 23-32
Lisa A. Baker J.D.
Date Published
August 2008
10 pages
This article discusses issues concerning the first amendment as it relates to speech by public employees.
It is stated that the precise contours of the first amendment relative to speech by public servants is not easily described, but that recent judicial guidance allows for some generalizations. For speech to garner first amendment protection and, thus, be protected from retaliation, the speech must be made as a citizen, as opposed to owing itself to the performance of official duties, and must address a matter of public concern. The article notes that if this foundation was set, the first amendment would offer protection only if the interest of the employee engaging in the expressive activity outweighed the substantial interests of operations of a law enforcement employer. The article discusses the first two prongs of a four-part inquiry established by the Supreme Court to determine if a public employee’s first amendment rights were violated, and examines recent judicial activity interpreting and clarifying these two prongs. Also cited are Supreme Court cases clarifying what constitutes public concern for purposes of assessing first amendment protection, as well as the impact of speaking as an employee in the performance of official duties as opposed to speaking as a private citizen. Additionally, the article explores the relative interests that are assessed when determining the scope of first amendment protection. 64 notes