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Free speech in the workplace- can you or can’t you?

Free Speech Blog

Generally speaking, state statutes, the First Amendment to the U.S. Constitution, and Article First, Sec. 4 of the Connecticut Constitution protect employees from being disciplined for speaking out in the workplace.   A recent case from Pennsylvania nicely illustrates the bounds of the protection, and where the line between protected speech and non-protected speech lies.

In Munroe v. Central Bucks School Dist., a public high school English teacher kept a blog in which she sharply (and sometimes using vulgar language) criticized her students.

1- To be protected “free speech,” the statements (or writings, or other expression) must be of “public concern.”  In this case, the Third Circuit court of appeals held that the teacher’s statements were just barely of public concern.  The teacher would occasionally opine on the school’s grading system, or the value of hard work.  Had the teacher’s remarks concerned solely, say, the students’ appearance, her statements would not have passed this threshold.

2- To be protected, the expression must not be overly disruptive to the operation of the employer’s business.  In this case, the court held that the teacher’s statements were simply too disruptive to be protected.  Her blog gained the notice of a local news station, and more than 200 parents wrote to the school to request that the teacher not teach their children.

In assessing these two requirements, courts employ a balancing test: they weigh the importance of the speech against the disruption that it caused.  For example, in another case out of Pennsylvania, an employee concerned with the Philadelphia school system’s finances met with news reporters to discuss the inappropriate steering of a contract. Read more here. In that case, the court held that the workplace was not disrupted very much by the disclosure of alleged misconduct.  No close working relationships were destroyed, and the school district could function without much uproar.  Further, the employee’s disclosure of potential wrongdoing with taxpayer money was the most important kind of free speech- truly intended to protect the public interest in the integrity of government.

It’s easy to see whey these cases came out differently- in the first, the teacher’s mean comments about her students that causes a local media spectacle were not entitled to protection.  In the second, the administrator’s disclosure of mishandling of a contract by a public school district that did not create much press was indeed protected.