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FREE SPEECH IN THE WORKPLACE:

THE FIRST AMENDMENT REVISITED

By: Karen Sutherland

A. Background

I spend a substantial amount of my practice on employment law issues, including workplace

training on sexual harassment, discrimination and workplace violence. One question that

frequently comes up during the training sessions sounds something like this: "What about my

right of free speech? The short answer to this question is "Yes, you can be disciplined or even

fired for saying something sexist or racist, and in many cases for insubordination too."

The question illustrates the huge gap between what is allowed under the First Amendment in the

context of broad public discourse and the anti-discrimination and other laws and rules applicable

in the workplace. It also highlights the differences between public and private sector

employment.

B. Public Employees Freedom of Speech/First Amendment Rights

1. Public Concerns v. Effective and Efficient Public Service.

Public employees have a constitutionally protected interest in freedom of speech. Dicomes v.

State, 113 Wn.2d 612, 625, 782, P.2d 1002 (1989), citing Perry v. Sindermann, 408 U.S. 593,

597-98, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) and Pickering v. Board of Education, 391 U.S.

563, 574, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). Constitutionally-protected speech is not an

absolute in the workplace for public employees, however. In Connick v. Myers, 461 U.S. 138,

148 n.7, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), the Supreme Court outlined a two-step test

for determining the scope of First Amendment rights of public employees, which has been

adopted by the Washington State Supreme Court.

First, the court must determine whether the speech involves a matter of public

concern. Connick, at 147-48. 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.

Connick, at 150.

Dicomes, 113 Wn.2d at 625.

The types of matters that have been held to be of personal interest and therefore not protected by

the First Amendment include disputes over internal office affairs or over pay, hours or conditions

of employment. Id.

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2. 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, citing Connick, at 152-53; Givhan v. Western Line

Consolidated School District, 439 U.S. 410, 415 n.4, 58 L. Ed. 2d 619, 99 S. Ct. 693 (1979). In

this context, 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.

In this context, it is important to examine "the extent of authority and public

accountability the employee's role entails." Rankin, at 390. 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."

Rankin, at 390-91. 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.

3. Is the Speaker an Equal Policy Maker?

The court has outlined a test for determining whether a public employee is an

"equal policy maker" or not. That test includes "whether the speaker establishes

priorities, develops programs, procures funding, conducts studies, controls a

budget or prepares budget requests, and whether the speaker is given broad

discretion and is relatively unsupervised in carrying out these responsibilities.

The court may also consider whether the speaker's position involves

decisionmaking on issues where there is room for political disagreement on goals

and their implementation. Another consideration is 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 the Dicomes case, the court held that "the First Amendment does not require that

[the Director] tolerate action which