The Civil Rights Act enacted the 13th, 14th, and 15th Amendment to give people a remedy when the government violates their rights, such as freedom of speech or religion. The problem is these Constitutional rights require State Action – namely the government must be the one violating them. This is problematic because an employer, unless it is the government, is a private entity and thus can censor workplace expression unless there is federal or state legislation to the contrary.
However, speech and expression may relate to other statutory laws that do give employee’s rights and remedies such as Title VII and Whistleblower laws. For example, an employer’s comments that are sexist or racist are still prohibited under Title VII.
Yet, when the employer is the Government, the rules change. Government-employee speech is a complex and very gray area of the law as courts are constantly developing the doctrine.
The Supreme Court has said that the public employee must be speaking on a “matter of public concern.” Just in 2006, the U.S. Supreme Court in Garcetti v. Ceballos, held that the First Amendment did not protect public employees from speech made “pursuant to their official duties.” The Case Law Firm, LLC will vigorously fight for public employees’ free speech rights and analyze to see whether private employees may have a cause of action under the federal or state statutes.