Do you have a right to speak freely?
No doubt, the public expects its law enforcement community to expose in-house wrongdoing, whether the bad act involves criminal, immoral, unethical or unprofessional conduct. That said, police officers are also in a position to bring alleged wrongdoing to light to satisfy their own interests, and sometimes such disclosures result in officers being disciplined, up to and including termination. But don’t police officers have a right to expose all wrongdoing, whether motivated by personal or altruistic reasons? Isn’t speech by police officers protected by the First Amendment? The answer: it depends.
Most speech is protected to some degree by the First Amendment. However, the First Amendment does not protect police officers and other public employees from discipline for speech-related activities in a manner not afforded employees in the private sector.
The United States Supreme Court has long held that a public employee maintains a First Amendment right to speak out on matters of public concern even though the employee works for the government.1 This undoubtedly includes police officers. However, the Court has also stated, “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, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.”2 That is, public employees can be punished for exercising their First Amendment right, but only if the facts of the case, as reasonably known to the employer, indicate the employer’s interest in promoting efficiency of public services outweighs the employee’s interest in free speech.3
The determination of what speech is protected in the public employment context involves a two-part analysis. First, the speech must address a “matter of public concern,” and then the “interest of the employee in speaking must be weighed against the interest of the State, as an employer in promoting the efficiency of the public services it performs through its employees.”4 In other words, if the speech addresses a personal matter, it’s not protected by the First Amendment. If it’s a public matter, the court must balance the employee’s interest in expression against the government’s interest in effectively discharging its duties.
A Matter of Public Concern
A statement is characterized as a matter of public concern, and not merely a complaint about internal workplace issues, if it can be “fairly considered as relating to any matter of political, social or other concern to the community.”5 To determine whether a police officer’s speech is a matter of public concern, the courts will conduct a case-by-case inquiry, examining the content, form and context of a given statement.6 The content of the speech remains the most important factor.
That said, the courts will inquire as to “the point of the speech in question: Was it the employee’s point to bring wrongdoing to light? Or to raise other issues of public concern because they are of public concern? Or was the point to further some purely private interest?”7 Note: Just because a police officer speaks out on a topic that may be deemed one of public concern does not automatically render their speech protected. The content and form of the speech, along with the surrounding circumstances, including the officer’s reasons for their remarks, are important factors in determining whether the officer’s speech is a matter of public concern.
Several courts have held that speech related to public corruption and public safety is generally a matter of public concern.8 Protecting employees who expose wrongdoing related to those issues obviously lies at the core of the First Amendment. Example: A police officer’s comments to co-workers, union officials and the police association criticizing his superior’s handling of a shooting investigation and subsequent creation of a policy prohibiting unauthorized follow-up investigations amounted to protected speech.9 Additionally, a police officer’s internal memorandum summarizing his investigation of possible criminal activity by a close relative of an elected official amounted to protected speech.10 Finally, a police officer’s report to his chief, the village president, village trustee and state’s attorney containing allegations of embezzlement and bribery within the department was a matter of public concern.11
Balancing Speech & Workplace Efficiency
After determining whether a police officer’s remarks touches on a matter of public concern, the second issue courts must address is the government’s interest in the efficiency of public services. If the police agency’s interest in the effective discharge of its duties outweighs the police officer’s interest in their speech, the police agency prevails because a government employer must have wide discretion in the fulfillment of its public duties, including the right to suspend employees who hinder the effective operation of the business.12
The 7th Circuit Court of Appeals reviews several factors when balancing the employee’s First Amendment interests against the government’s interest in providing services efficiently:
1. Whether the statement would create discipline problems or affect harmony among coworkers;
2. Whether the employment relationship is one in which personal loyalty and confidence are necessary;
3. Whether the speech impeded the employee’s ability to perform their daily responsibilities;
4. The time, place and manner of the speech;
5. The context in which the underlying dispute arose;
6. Whether the matter was one on which debate was vital to informed decision making; and
7. Whether the speaker should be regarded as a member of the general public.13
With respect to the first two factors, the 7th Circuit notes that a government employer is permitted to consider “the potential disruptiveness” of the employee’s speech.14 This is particularly so with respect to running police departments. As paramilitary organizations, law enforcement agencies are qualitatively different from other governmental agencies; law enforcement employers are “subject to greater First Amendment restraints than most other citizens.”15 The 7th Circuit adds, “[T]here is a particularly urgent need for close teamwork among those involved in the ‘high stakes’ field of law enforcement. Speech that might not interfere with work in an environment less dependent on order, discipline, and esprit de corps could be debilitating to a police force. Such considerations are permissible in weighing constitutional violations.”16
Because of the importance of order, loyalty and discipline within the police agency, there’s no easy answer for law enforcement officers as to whether their speech is protected by the First Amendment even if it touches upon a matter of public concern. If you don’t know whether your potential remarks would be protected under the First Amendment, seek legal counsel.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
References
1. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
2. Connick v. Myers, 461 U.S. 138, 147 (1983).
3. Waters v. Churchill, 511 U.S. 661, 668 (1994).
4. Id.
5. Connick, 461 U.S. at 146.
6. Id. at 147-48.
7. Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985).
8. Kinney v. Weaver, 301 F.3d 253, 276 (5th Cir. 2002) (speech regarding the misconduct of public officials, “especially when it concerns the operation of a police department,” is of utmost First Amendment significance). Myers v. Hasara, 226 F.3d 821, 826 (7th Cir. 2000) (noting importance of public employees’ right to “expose misdeeds and illegality in their departments”).
9. Gustafson v. Jones, 117 F.3d 1015, 1017-1019 (7th Cir. 1997)
10. Delgado v. Jones, 282 F.3d 511, 517-18 (7th Cir. 2002).
11. Hare v. Zitek, 414 F.Supp.2d 834, 856 (N.D. Ill. 2005).
12. Arnett v. Kennedy, 416 U.S. 134 (1974).
13. Caruso v. DeLuca, 81 F.3d 666 (7th Cir. 1996).
14. Id. at 671.
15. Kelley v. Johnson, 425 U.S. 238 (1976) (the need for discipline and loyalty is especially important in law enforcement agencies).
16. Breuer v. Hart, 909 F.2d 1035, 1040 (7th Cir. 1990). See, also, Shands v. City of Kennett, 993 F.2d 1337, 1344 (8th Cir. 1993).
LAURA L. SCARRY is a partner in the law firm of DeAno and Scarry in Wheaton, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986–1992.
