New York Public Personnel Law: Free speech rulings by the federal courts

September 27, 2011

Free speech rulings by the federal courts

Free speech rulings by the federal courts
Selected decisions by U.S. Circuit Courts of Appeal

In Swartzwelder v McNeilly, 01-1085, the U.S. Circuit Court of Appeals, Third Circuit, held that a public employer may not require that its employee obtain its prior approval before he or she may give his or her opinion as an expert witness concerning matters of public interest at a trial unless the employer is able to demonstrate that such a requirement is appropriately tailored to the employer's interests.

In deciding Nieves v Board of Education, City of Chicago, 01-3814, the Circuit Court of Appeals, Seventh Circuit, rejected a claim advanced by Rose Nieves, a City of Chicago school employee, that she had been terminated in retaliation for her exercising her right to free speech, holding that there was no evidence connecting the timing of Nieves' termination when her position was abolished as part of a reduction in force to her exercising her First Amendment right to free speech.

According to another ruling by the Seventh Circuit, Thompson v Illinois Department of Professional Regulation, 01-4074, because Mark A. Thompson, a chief administrative law judge, held a policy making position, he could not maintain his law suit based on allegations that his demotion and transfer was in retaliation for his exercising his First Amendment rights to free speech concerning his political beliefs.

Freespeech issues raised by public employees have been considered by the U.S. Supreme Court. Its decisions suggest that the following general guidelines will be applied in addressing such free speech issues:

1. Public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

2. Speech by a public officer or employee that merely addresses a personal concern such as the individual's personal unhappiness working for the public employer or for a particular supervisor, or related to the individuals' particular position, work assignments or working conditions, or the individual's personal disagreement concerning the internal operations of the department or agency, that do not rise to the level of speech concerning a "public interest," does not involve "protected speech" within the meaning of the First Amendment.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.