Is What You Say at Work Protected by the First Amendment?

By: Florida National University Professor, Joseph S. Giannell, Esq.

Is What You Say at Work Protected by the First Amendment?Is what you say at work protected by the First Amendment? The answer to this question depends on the situation. The United States Supreme Court recently handed down a decision that helps answer this question for government employees. In the case of Garcetti v. Ceballos, the Court held that when public employees make statements pursuant to their official duties, their statements are not protected by the First Amendment. However, when public employees make statements outside their duties, then that speech may be protected by the First Amendment.

So what does this all mean for college students that decide to work for the government after graduation? Basically, the extent of you First Amendment rights will depend in large part on your job description. For example, if a state attorney paralegal as a part of his/her job duties has a meeting with an attorney, anything that the paralegal says at that meeting is not protected by the First Amendment. On the other hand, if the paralegal were to write a letter to a newspaper complaining about government budgeting and waste, all of that speech would be protected by the First Amendment because it is not a part of a paralegal’s duties to write letters to newspapers.

So why is it important to have your speech protected by the First Amendment as a government employee? When speech is protected by the First Amendment, your employer cannot discipline or retaliate against you for things you say that are considered protected speech. However, your employer could discipline you for unprotected speech because when government employees engage in speech pursuant to their job duties, they are technically speaking for the government, so the courts allow public employers to have the ability to control what their employees say in these situations. The bottom line is that anything you say pursuant to your job duties is unprotected speech and can be regulated by your employer; however, if you say something outside of your job duties, your speech will likely be protected by the First Amendment and your employer cannot hold that speech against you.

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