Baton Rouge lawyer: First Amendment protection of public employee speech is complicated

By April Bamburg | Apr 23, 2016

BATON ROUGE – Questions of freedom of speech and employee rights have skyrocketed with the increasing popularity of social media, but as a Louisiana lawyer points out, the answers are dependent on the situation, especially when it comes to employees of public agencies. 

“If (Louisiana public agencies) try to control employees’ social media posts, I think it would certainly involve First Amendment questions," J. Arthur Smith, III, an attorney with offices in Baton Rouge and Monroe, recently told the Louisiana Record. "If public agencies are telling employees that ‘you need to post on your Facebook that you support Donald Trump,‘ I would expect that would cause problems. The First Amendment is complicated. It shouldn’t be complicated, but it is.”

Employees’ social media posts can be protected, but there are specific parameters. 

“A public employee’s speech has to pertain to a matter of public concern, and not within their official duties,” Smith, who has practiced law for more than 40 years in the state, said.

To illustrate the difference between public concern and private concern, Smith cited the case of Sheila Myers, an Orleans Parish assistant district attorney who was fired by then-District Attorney Harry Connick, Sr., after she spoke out about her experiences with Connick’s management practices and disseminated a survey to her fellow workers about her supervisor’s management practices.

The case made it all the way to the Supreme Court and the justices ruled that she was not speaking out on matters of public concern. Therefore, it was not protected speech. 

“If she had been speaking on matters of public concern, like social issues or political issues, it would have been different,” Smith said.

When it comes to official duty speech, Smith cited Garcetti v. Ceballos. Los Angeles County Assistant District Attorney Richard Ceballos’ duties included reviewing cases and making recommendations about whether or not to prosecute those cases. The case in question, Smith said, involved police misconduct, and Ceballos made the recommendation not to prosecute the case. He claimed that he was subjected to retaliatory actions based on his recommendation; the actions included a change in professional position, transfer from his courthouse, and that he was passed over for a promotion. The U.S. District Court for the Central District of California ruled that his speech was not protected, and his First Amendment rights had not been violated. An appeals court reversed this decision, and the case moved on to the Supreme Court.

In 2006, the U.S. Supreme Court decided that Ceballos’ statements were part of his official duties as an assistant district attorney, not made as a private citizen, and that his speech was not protected by the First Amendment.

“It was his job to make recommendations,” Smith said. “The ADA cannot be held liable for performing his job duties.”

When it comes to the question of official duty speech, Smith says he takes a stance for which there has not been a ruling.

“We have a different rule in Louisiana,” he said. “Official duty speech is not part of the Louisiana Constitution that was presented in 1974. The Louisiana Constitution very clearly states that the Bill of Rights in the document is to be reflective of the U.S. Bill of Rights that was in effect in 1974, and is not to be changed. Official duty came up in 2006."

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