LEGAL BRIEF
Issues Public Employers Face During Mass Protest – Q&A By J. Scott Tiedemann and David A. Urban
Our nation has continued for months to react to the death of George Floyd, and this reaction includes the thousands who have participated in mass protests across the country in June 2020. Many people feel compelled to speak openly and passionately about an issue of national importance. Public employees likely wish to express their views as well, and this includes not only those working to keep local government running effectively, but the public safety personnel working to keep the peace. The following discusses the speech rights of public employees relevant to this year’s mass protests, and how agencies can respond to the expression of their employees in different types of scenarios related to protests. 1. What First Amendment rights do public employees have in relationship to their own employers? In most circumstances, public employees have a right under the First Amendment to speak freely without adverse action from their employer if three requirements are met. First, 24
the employee must speak on an issue of “public concern.” This includes topics of importance to the nation or community at large. Second, the employee must speak outside the scope of their “official duties.” This means the employee’s speech must not constitute the activity they are expected to do as part of their job. Third, the speech must satisfy a balancing test between the government interests of the employer under the circumstances and the speech rights of the employee. If what an employee says causes or sufficiently threatens to cause disruption to the agency, then the employee will not prevail on this third step and the speech will not
have First Amendment protection. As you will read below, this three-part test under First Amendment law answers many of the questions that arise in this area. Under this First Amendment test, the subject matter of the recent protests regarding police conduct and civic equality without question constitutes one of “public concern.” Yet, by contrast, a police officer making statements in attempting to de-escalate a conflict during a protest, or speaking at a press conference hosted by her agency, would likely not have protection for his or her speech because the officer would be communicating as part of “official duties.” The agency has the right to critique the officer’s performance in dealing with the conflict, or in speaking at the press conference, without regard to First Amendment rights of the officer. But if an agency employee participates in a protest on their own time, their expressive activity is not pursuant to “official duties.” If no disruption to the agency results or is sufficiently threatened, the employee will likely have First Amendment protection for their expression. 2. What if an employee asks for time off to engage in peaceful protesting? An agency in responding to the request for time off should treat it in the same manner as it would treat such a request based on other general personal reasons. If the agency allows time off only for protected leaves including sick leave, for vacation scheduled in compliance with agency policy, or for other narrowly defined reasons, it does not need to make an exception for protest activity. But if the California Special Districts • Sept-Oct 2020