Freedom of Speech in the Workplace: The First Amendment Revisited

Do employees have freedom of speech in the workplace? The answer depends on whether the employer is a public or private entity, the type of speech involved, and the employee’s position.

Public Employees Freedom of Speech-Personal vs. State Interests

Public employees have a constitutionally protected interest in freedom of speech. Dicomes v. State, 113 Wn.2d 612, 625, 782, P.2d 1002 (1989). Constitutionally-protected speech is not an absolute in the workplace for public employees, however.

There is a two-step test for determining the scope of First Amendment rights of public employees. First, the court must determine whether the speech involves a matter of public concern. Second, the court must balance the interest of the employee as a citizen commenting on matters of public concern with the interest of the State as employer in providing effective and efficient public service.

Matters that have been held to be of personal interest and therefore not protected by the First Amendment include disputes over internal office affairs, pay, hours or conditions of employment.

Interference or Disruption of the Public Enterprise

In addition to examining the content of the employee’s speech, the court must examine its context. Dicomes, 113 Wn.2d at 625. The focus is on the effective functioning of the public enterprise and the extent to which the employee’s speech interferes with or impedes those operations. Id. It is important to examine “the extent of authority and public accountability the employee’s role entails.” If the “employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal.” Thus, there are limits on the extent to which an employee in a sensitive or policy-making position may freely criticize superiors and the policies they espouse. Dicomes, 113 Wn.2d at 625-26.

Is the Public Employee an Equal Policy Maker?

The court has outlined a test for determining whether a public employee is an “equal policy maker.” That test includes:

• Whether the speaker establishes priorities, develops programs, procures funding, conducts studies, controls a budget or prepares budget requests;
• Whether the speaker is given broad discretion and is relatively unsupervised in carrying out these responsibilities;
• Whether the speaker’s position involves decision-making on issues where there is room for political disagreement on goals and their implementation; and
• Whether the statement was made by an appointed executive or high-ranking official vested with the authority to carry out discretionary government functions, such as that the statement challenges the political choices represented by the administration’s election office.

Dicomes, 113 Wn.2d at 626 (citations omitted). This test is “truly a balancing test, with office disruption or breached confidences being only weights on the scales.” Dicomes, at 627 (citation omitted).

In Dicomes, the court held that “the First Amendment does not require that [the Director] tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.” Thus, no First Amendment rights were violated by the discharge, and the trial court’s summary dismissal of this claim was affirmed. Id. at 628-29.

A Four-Part Test for Determining Free Speech Protection in Public Employment

In Binkley v. Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990), Binkley claimed that his constitutional right of free speech was violated when he was reassigned after preparing a document entitled a “vote of no confidence” that discussed his supervisor. This document followed a 10-month dispute between Binkley and his supervisor regarding his performance. Binkley claimed that the document was protected by his First Amendment right of free speech.

The court disagreed because the point of Binkley’s “speech” was to further a personal interest, rather than raise an issue of public concern. Id. at 385.

The Binkley court applied a four-step inquiry, each step of which must be satisfied, before determining that workplace speech is protected by the First Amendment:

• First, the public employee must establish that his speech dealt with a matter of public concern.
• Second, the public employee must prove that his interest in “commenting upon matters of public concern” is greater than the employer’s interest in “promoting the efficiency of the public services it performs.”
• Third, the public employee must demonstrate that his speech was a substantial or motivating factor in the adverse employment decision of which he complains.
• Fourth, if the employee can prove all of the first three elements, the burden shifts to the employer to prove that it would have reached the same decision even in the absence of employer’s protected conduct.

The first two steps are questions of law for the court to resolve. The second two are ordinarily fact questions. 114 Wn. 2d at 382. See also Wilson v. State, 84 Wn. App. 332, 929 P.2d 448 (1996).

No Constitutional Freedom of Speech in the Private Sector

The case law that has developed over time regarding First Amendment rights in the workplace has come from the public sector, as the government is directly affecting employees in public sector cases. There are no Washington cases that this author is aware of where freedom of speech has been found to be protected under the First Amendment in the private sector workplace.

Other Freedom of Speech Issues in the Private Sector

On one level, a private sector employer could take the absence of a direct First Amendment right as providing free rein to discipline, terminate or retaliate against employees for their speech in the workplace. Before doing so, however, the private sector employer should take into account the effect of the anti-discrimination laws such as Title VII, RCW 40.60 (the Washington Laws Against Discrimination or “WLAD”) and various local laws.

These laws provide a level of protection for certain types of expression in the workplace, and thus should be considered even if the right of speech associated with these laws is not a “First Amendment” right per se.

For example, punishing an employee because of his religion is not technically a First Amendment violation in the private sector, but it would be a violation of the anti-discrimination laws. Conversely, the anti-discrimination laws prohibit certain types of expression on the part of employers, such as comments that constitute sexual or racial harassment, thereby putting a limit on “free speech” in the workplace.

The Bottom Line

If you are advising employers in the public sector, or employees who believe their free speech rights have been violated, ask the following questions:

• Does the employee’s speech deal with a matter of public concern?
• Is the employee’s interest in commenting upon matters of public concern greater than the employer’s interest in promoting the efficiency of the public services it performs?
• Is the employee’s exercise of his right to speak a substantial or motivating factor in the adverse employment decision?
• Can the employer prove that it would have reached the same decision even in the absence of employer’s protected conduct?

If the First Amendment free speech criteria do not apply, determine if there is there some other interest that governs the employee’s ability to speak freely. The following are some examples:

• Is this employee’s speech being restricted or punished because the employee is expressing religious or other beliefs that are different from the employer’s or from co-workers?
• Are employees of some religions or national origins allowed to express themselves regarding religion or national origin, but not others?
• Is the employee being punished for speaking a different language during lunch or breaks?
• Are the employee’s rights to share information protected by some other right, e.g. union regulations under the NLRB or PERC that allow employees to share salary information?

Additionally, determine whether the employer has a duty to restrict the employee’s speech. For example:

• Does the employee’s speech violate the anti-harassment or anti-discrimination laws, including local ordinances?
• Are other employees using speech or expression to retaliate against an employee for exercising his or her legal rights?
• Is the employee entitled to whistleblower protection?

By addressing the above questions, you should begin to develop a sense of whether the employee’s freedom of speech has been violated.