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Free Speech / First Amendment Retaliation

Nashville employment attorney Curt Masker fights for public employees who have been wrongfully terminated for engaging in protected free speech. Citizens do not surrender their First Amendment rights by accepting public employment. Rather, government employees are entitled to speak out on matters of public concern without fear of being retaliated against. If you were fired soon after exercising your First Amendment rights, call The Masker Firm for a free and confidential legal consultation. As discussed in detail below, First Amendment retaliation claims are highly fact specific and speaking with an experienced employment lawyer like Curt Masker to review the facts of your case is a necessary first step.

First Amendment Quick Facts
  • Applies to government employers
  • Does not apply to private sector employers
  • But other legal protections exist under civil service rules and for whistleblowers and those who engage in protected activity under various federal and state employment laws
  • Depending on several factors, may prohibit pubic employers from firing employees for speaking on matters of “public concern” such as politics, tax policy, and corruption
First Amendment Protections for Public Employees

The First Amendment of the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Unlike private sector employees, public sector workers enjoy First Amendment speech protections in some circumstances. These protections are grounded in the belief that government employees are often in the best position to ferrate out inefficiencies and corruption in government, and communicating this information to the public at large should be encouraged and protected.

Examples of First Amendment retaliation may include being fired or treated poorly soon after you:

  • Posted a political opinion on Facebook
  • Participated in a political protest, e.g., Black Lives Matter
  • Wrote a letter to the editor of a local newspaper criticizing the school board that employs you
  • Reported government spending irregularities
  • Provided truthful sworn testimony outside your ordinary job duties

Do you have a free speech retaliation claim? Contact Nashville employment lawyer Curt Masker today for a free and confidential legal consultation.

Proving a First Amendment Retaliation Claim in Tennessee

Speech by citizens on matters of public concern lies at the heart of the First Amendment, which “was fashioned to secure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484 (1957). On the other hand, “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

Whether or not the First Amendment protects a public employee’s speech depends on a careful balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968).

To establish a claim for First Amendment retaliation, a public employee must show that:

  1. she engaged in constitutionally protected speech or conduct;
  2. an adverse action was taken against her that would deter a person of ordinary firmness from continuing to engage in that conduct; and
  3. the adverse action was motivated at least in part by her protected conduct.
What is Constitutionally Protected Speech?

Whether or not a public employee’s speech or conduct is constitutionally protected is determined on a case-by-case basis using a two-step analysis that assesses:

(1) Whether the statement in question constitutes a matter of public concern and whether the employee spoke as a private citizen or public employee in the course of employment, Dambrot v. Cent. Michigan Univ., 55 F.3d 1177, 1186 (6th Cir. 1995); and

(2) If the speech is protected, then the court applies the Pickering balancing test to determine whether the plaintiff’s “interest in commenting upon matters of public concern … outweigh[s] the interest of [the government], as an employer, in promoting the efficiency of the public services it performs through its employees,” Pickering, 391 U.S. at 568.

A. What is “Public Concern”?

Whether or not speech is protected in a given case is determined based on the content, form, and context of a given statement.

Speech on matters of public concern may include:

  • Testifying before a legislative body or in a court of law
  • Opposing a school board’s failure to follow state law or its own policies
  • Speaking out about voter suppression
  • Opposing a school’s racially discriminatory policies
  • Criticizing government corruption, inefficiency and waste (as a concerned citizen)
  • Commenting on the inadequacy of government services
  • Raising awareness of public health and safety concerns

The following are generally NOT considered matters of public concern:

  • Grievances about internal office policies or procedures
  • Emails discussing low office morale
  • Other matters not of political, social, or other concern to the public

It is important to note that the government’s burden in justifying a particular discharge varies depending on the nature of the employee’s expression. Generally, statements involving elections, legislation, and corruption are afforded a greater degree of protection. However, even statements involving the democratic process may enjoy less protection where the speech conveys no special insight on the matter, thus diminishing public interest in the speech. Bennett v. Metro. Gov't of Nashville & Davidson Cty., 977 F.3d 530 (6th Cir. 2020).

B. Pickering Balancing Test

The Pickering test is used “to determine [whether] the employee’s free speech interests outweigh the efficiency interests of the government as employer.” Gillis v. Miller, 845 F.3d 677, 684 (6th Cir. 2017). The test considers the “manner, time, and place of the employee’s expression.” Rankin v. McPherson, 483 U.S. 378, 388 (1987).

First Amendment retaliation claims are legally complex and you need experienced Nashville employment attorney Curt Masker in your corner. Contact Curt today for a free legal consultation.

Client Reviews
Curt worked diligently and maintained excellent communication with my case. He made sure to keep us updated about any and everything. I highly recommend the Masker Firm. Would give more stars if possible. Jeffrey
Curt really came through for me when a previous employer had reported my job title and hire dates incorrectly, he got it corrected within 12 hours of speaking to him about it! I would recommend him for any of your legal needs as he is quite efficient! Renee
Curt was very responsive from the beginning. He made it a very easy process, and he provided excellent guidance in the review of my severance agreement. Due, in part, to Curt's thoughtful suggestions in regards to changing some key language in the agreement that would protect both me and my former employer, they agreed to the changes. To protect yourself during job transition, a review of a severance agreement is a smart thing to do, and Curt will do an excellent job on your behalf. Thomas
Curt handled a case for me and did an unbelievable job in getting a resolution and a great settlement. I would highly recommend him to anyone. Teena