Expressive Speech
and the Law
Enforcement Officer
IACP
Legal Officers Section
2003
The Expressive Employee
Exercise



Facts: Smith is employed as a police officer and works as a
computer technician. On at least two occasions he anonymously
mailed from his home anti-black and anti-semitic statements in
return envelopes. The materials were referred for investigation to a
neighboring police department who determined that Smith was the
source. Smith was charged with violation of a internal rule and at
his hearing asserted that the mailings were a form of protest.
What would your ruling be?
What is your justification for your ruling?
st
1 Amendment

“Congress shall make no law . . . Abridging
the freedom of speech; or the right of
people peaceably to assemble, and to
petition the government for a redress of
grievances.”
Types of Expression /
Relation to Governmental
Restrictions
Unprotected
Obscenity
Threats bodily harm
Protection From Governmental
Restriction
Limited Protection
Expression in Gov’t
workplace
Highly Protected
Political speech
P
o
l
i
c
p
True Threat

True threat (Order to Disperse)
 Those forms of intimidation designed to inspire fear of
bodily harm.
 Thus just as a State may regulate only that
obscenity which is the most obscene due to its
prurient content, so too may a State choose to
prohibit only those forms of intimidation that are
most likely to inspire fear of bodily harm.” Virginia at
123 S.Ct. 1536 (2003)
The Boundaries
Freedom of Expression
_
Military
Free Trade of Ideas
+
Police
Civilian
_
+
Efficient Performance of Governmental Service
Military

The military need not encourage debate or
tolerate protest to the extent that such
tolerance is required of the civilian state by
the First Amendment; to accomplish its
mission the military must foster instinctive
obedience, unity, commitment, and esprit
de corps. Goldman v. Weinberger, 106 S.Ct. 1310
Civilian

Civilian / Public Forum

Restriction of Content
subject to strict
scrutiny

The means chosen
(governmental
restriction) must be
strictly tailored to
promote a compelling
governmental interest.
Accommodation of Civilian
Expression in Public Forum

"These later decisions have
fashioned the principle that the
constitutional guarantees of
free speech . . . do not permit
a State to forbid or proscribe
advocacy of the use of force or
of law violation except where
such advocacy is directed to
inciting or producing imminent
lawless action and is likely to
incite or produce such action."
Brandenburg 89 S.Ct 1827
The Police Officer and Expression
Within the Workplace
Police Officers Speech
Private
Concern
Public
Concern
Officer does not lose his/her 1st Amendment right to comment on matters of pubic
concern by virtue of being employed by the government
Competing Interests
Pickering Test
citizen in
Interests of employee as a
commenting on
matters of public concern
employer
Interests of State, as an
, in promoting
public Services it performs
through its employees
Competing Interests
Pickering Test/Rationale
The test allows the government a degree of control over
its employees to permit it to provide services efficiently and
effectively
Ensures that public employers do not use their
authority to silence discourse, not because it hampers
public functions, but simply because superiors disagree
with the content of the speech
Public and Private Concerns
The Public Concern
Two Step Test
Does the speech involve a matter of public concern?
“Whether an employee’s speech addresses a matter of public concern
must be determined by the content, form, and the context
of a given statement, as revealed
by the whole record”
Matter of Public concern
Any matter of political, social, or other concern to the community
Examples of Private and
Public Concerns

Private

Questionnaire regarding
office transfer policy.



Connick 103 S.Ct. 1684
Personal Complaints
about internal working
conditions.

Tang 163 F.3d 7(1st Cir 1998)
Change in an
employee’s duties.


U.S v. Nat’l Treasury Union, 115
S.Ct 1003
Employee speech which
transpires entirely off duty or
in non-work areas of the
office.
Examples of Public Concerns



Report critical of
employer’s policies
Police commissioners
criticism of police
department
Personnel director’s
truthful testimony
before state senate
committee

Legal aid attorney’s
criticism of
supervisor’s policies.
Problem

Fact specific
Warning

Unless the speech is a clear example of an expression of a
private concern – it is best to treat that speech as a public
concern and be prepared to demonstrate that it impaired the
effectiveness of the Department.
Why the 1st step is problematical
Preparation for retaliation claim / Mixed
Content

Elements



Private or Public
Adversely affect efficiency of workplace
The protected speech was a substantial or
motivating factor in the adverse action.
 Banks v. Wolfe, 330 F.3d 888(6th Cir. 2003)
2nd Step
Even if speech is a mater of public concern, then the government must show
that the speech so threatens the government’s effective operation
that discipline of the employee is justified
Effective Operation of the Workplace
Does the Speech harm the effective
functioning of employer’s enterprise?
Harm to Effective Operation of the
Department





When and where were the statements made?
What is the employee’s assignment?
Does the employee occupy a position of rank?
Is the employee in a supervisory or policy making role?
Did the statement actually effect the ability to operate or
only place it in jeopardy?
 Did it engender mistrust in the community?
Assessing the Employers Legitimate
Interest in Discipline
Impairs
discipline by
superiors
Impedes
speaker’s
performance
Breach of
Confidence
loyalty
Workplace
efficiency
Disrupts
harmony
amongst
Co-workers
Public
trust
Public Trust

“The effectiveness of a city’s police department depends on the
perception in the community that it enforces the law fairly, evenhandedly, and without bias . . . If the department treats a segment
of the population of any race, religion, gender, national origin,
sexual preference, etc., with contempt, so that the particular
minority comes to regard the police as oppressor rather than
protector, respect for law enforcement is eroded and the ability of
the police to do its work in the community is impaired.”
 Papps v. Giuliani, 290 F.3d 143(2nd Cir.2002)
A policeman may have a constitutional right to speak his mind
but he has no constitutional right to be a police man.
McAuliffe v. Mayor of New Bedford
29 N.E. 517(1892)