Limitations on Free Speech Reaffirmed

March 2018

It is well known that public employees do not surrender their First Amendment right to freedom of speech by reason of their employment. Much less known is that this right has limitations, and that public employers are free to take disciplinary action when those limitations are exceeded. On March 1, 2018, the Ninth Circuit Court of Appeals issued a decision–Toney v. Young–affirming the landmark rule, set forth in 2006 by the U.S. Supreme Court in Garcetti v. Ceballos, that public employee speech is not protected by the First Amendment if the employee speaks in his or her capacity as a public employee, rather than as a private citizen. The decision is particularly instructive to public school employers.

In Toney, a campus supervisor was terminated after she encouraged students to video-record alleged “police brutality” when police were called to address a large fight on campus. The school district terminated the campus supervisor for engaging in conduct that escalated the already contentious situation, in contravention of “her duty to maintain order and ensure the safety and security of District students and staff.” She then sued school administrators, claiming that they violated her First Amendment rights to free speech. The Ninth Circuit ruled in favor of the school administrators, primarily based on the fact that the speech in question was made by a public employee, on a matter of public concern, and in her capacity as a public employee.

The Ninth Circuit’s decision does not break new legal ground. It upheld the same doctrines set forth by the U.S. Supreme Court in 2006. But in practical terms, the court's decision is a good reminder of the limits of freedom of speech in public school employment. The Ninth Circuit emphasized that the “First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.” Although the campus supervisor had argued that she was not speaking in her capacity as an employee because her duties did not include “declaring police brutality and instructing students to film it,” she nevertheless made the speech within the scope of her duty to maintain safety on campus. Therefore her speech was not protected by the First Amendment and the school district was free to take corrective action.

The court also reaffirmed that the extent to which the speech is “a matter of public concern” is immaterial when the speech is made in connection with a public employee’s responsibilities. This distinction is notable. The rights guaranteed to private citizens by the First Amendment do not extend to public employees in their official capacity. When weighing potential disciplinary action, the threshold question that schools should consider is “whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.”

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