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First Amendment in the WorkPlace


May 18, 2021 by Tom Roberts, Esq.

(Public Employee --- Generally not applicable to Private Companies)

A public employee must establish four elements to state a claim for deprivation of First Amendment rights flowing from an adverse employment action. 

  1. First, to trigger First Amendment protection, the speech at issue must relate to matters of public interest.” Hanton v. Gilbert, 36 F.3d 4, 6 (4th Cir.1994) (citing Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983)). 
  2. Second, the “employee’s interest in First Amendment expression must outweigh the employer’s interest in efficient operation of the workplace.” Hanton, 36 F.3d at 6-7 (citing Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968))
  3. “Third, the employee must establish . . . that he was deprived of a valuable government benefit or adversely affected in a manner that, at the very least, would tend to chill his exercise of First Amendment rights.” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 352 (4th Cir. 2000). 
  4. “Finally, the employee ‘must establish a causal relationship between the protected expression and the retaliation: that the protected speech was a ‘substantial factor’ in the decision to take the allegedly retaliatory action.'” Id. (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 248 (4th Cir.1999)).

    Pone v. Town of Hope Mills, No. 5:18-CV-558-FL, 2020 U.S. Dist. LEXIS 2704, at *8-9 (E.D.N.C. Jan. 8, 2020)

Speaking as an employee upon matters of person interest is not generally constitutionally protected.

The initial inquiry in determining whether a public employee is entitled to the protection of the First Amendment is whether his speech addresses a matter of public concern. Seemuller v. Fairfax County School Bd., 878 F.2d 1578, 1581 (4th Cir. 1989). Generally, “when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest,” such speech is not constitutionally protected. Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983); see Urofsky v. Gilmore, 216 F.3d 401, 407 (4th Cir. 2000) (“critical to a determination of whether employee speech is entitled to First Amendment protection is whether the speech is ‘made primarily in the [employee’s] role as citizen or primarily in his role as employee.'” (citation omitted)). “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Id. at 146.  

Nichols v. Caroline Cty. Bd. of Educ., No. JFM-02-3523, 2004 U.S. Dist. LEXIS 2851, at *38-39 (D. Md. Feb. 23, 2004)

Teachers and Religion in School

The concept of academic freedom has never been recognized as conferring upon teachers the control of public school curricula. Boring v. Buncombe County Bd. of Educ. 136 F.3d 364, 369 (4th Cir. 1998) (citing Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir.1989), cert. denied, 496 U.S. 926, 110 S. Ct. 2620, 110 L. Ed. 2d 641 (1990)). “Public school officials  have control of the curriculum of the school irrespective of teachers’ First Amendment rights.” Newton v. Slye, 116 F. Supp.2d 677, 684 (W.D.Va. 2000).

Nichols v. Caroline Cty. Bd. of Educ., No. JFM-02-3523, 2004 U.S. Dist. LEXIS 2851, at *39-40 (D. Md. Feb. 23, 2004)

VERDICT = to "speak the truth" (ver = "true"; dit = past participle of dire "to say"

The school administration had full authority to circumscribe the curriculum in this fashion despite any claim to academic or religious freedom that [a teacher] might raise. Because [the teacher] engaged in unprotected speech, he cannot establish a claim for violation of First Amendment rights or First Amendment retaliation.

Nichols v. Caroline Cty. Bd. of Educ., No. JFM-02-3523, 2004 U.S. Dist. LEXIS 2851, at *40 (D. Md. Feb. 23, 2004)


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