A common environment where the First Amendment does not always flourish is in the work setting. One may ask, “Then in what circumstances does the First Amendment protect employees in the workplace?” Right off the bat one should note that there’s a difference between private and public employees. While public workers retain their First Amendment rights, companies can censor the speech of private workers. [1] So we’re already narrowing the pool to specifically public workers. With that being said, there is no guaranteed protection for these public employees. If there’s no guarantee of free speech then that completely defeats the purpose of setting aside First Amendment rights for public employees in the first place. Here’s the catch. Public employees must undergo a series of tests to see whether their First Amendment rights are appropriately protected. Basically, government employers must protect workers’ First Amendment rights. The employers cannot violate workers’ rights if: [2]
1. the employee is on government payroll
2. the employee was punished severely for his or her speech
3. the expression for which the employee was punished relates to a matter of public concern
4. the expression on a matter of public concern was a “but for” cause of the punishment—but for that expression the employee would not have been punished. So the government cannot add additional reasons for punishing the employee outside of the public concern domain
5. the employee’s speech does relate to a matter of public concern the employee is allowed to make important policy decisions or is in the position to override the policy directives of superiors [2]
The most common test that employees fail to pass is whether or not their speech constitutes a “matter of public concern.” This was the case in Mississippi where an employee was denied her First Amendment rights because her speech didn’t fulfill the “public concern” criterion. Former nurse Tonya Freeman starred in a film called “Tragic Flaw.” She was an employee at Magnolia Hospital during the time of the filming. In one of the scenes, Freeman’s coffee cup bearing the words “Magnolia Hospital” appeared as clear as day. [3] When Freeman took her nursing manager to see the previews of this movie, the nursing manager became very upset that the coffee mug displaying “Magnolia Hospital” was shot in the film. The overall storyline portrayed in the nonfictional film were about two lesbians attempting to hire a hit man to kill an abusive doctor who married one of the female characters in the film. [3] The inevitable themes of sexuality and violence make this film an unequivocal public detriment, not a public concern. The nursing manager worried that people may think Magnolia Hospital endorsed the movie’s egregious content. Some of the scenes depicted in the film relate to sadomasochism, or sexual gratification gained through inflicting or receiving pain. Moreover, the hospital’s chief executive officer fired Freeman for her overstepping the boundary in her exercise of free speech in this film. Freeman goes on to sue Magnolia Hospital for violating her First Amendment rights and due-process rights. [3]
Let’s examine the actual content of the “speech.” The coffee mug itself is not conveying speech that is worthy of public concern. At the same time, the mug itself isn’t detrimental to the public concern. The problem lies with the potentially detrimental message that the Magnolia Hospital is conveying through its affiliation with the film. However, Freeman’s speech was more symbolic than anything related to verbal communication, and the interpretation of the image can only go so far. The fact that the image of Freeman’s coffee mug alone became the center of contention leaves room for a lot of vague assumptions. After all, the nursing manager made the presumptuous statement that showing a scene with a coffee mug bearing “Magnolia Hospital” in a violent and sexual film would give the hospital a tainted image. She assumes the hospital may lose its authority as a credible place for people seek medical attention. People may draw the assumption that Freeman purposely used the mug for the shot to view the hospital she works for in a negative light, but that interpretation of what Freeman’s intentions were stretches beyond what was actually visible in the film. The mug alone tells no member in the audience that the speaker’s intent was to display Magnolia Hospital negatively or to convey the message that the Hospital supports illegal activities, sexual conduct, and violence. This leaves too vague an assumption and creates wide open space for speakers to feel inhibited and restricted in their speech because they are uncertain which speech is protected if something as minute as a coffee mug is easily denied protection under the First Amendment. Speakers may feel that they cannot speak without fear of retaliation or job termination. [4] These are huge issues that impede the speakers. Remember that the burden of the speech should always be on the governmental end of the spectrum.
Juxtapose another case that deals with employees’ First Amendment rights, and we see that the Supreme Court is recalcitrant when it comes to standing its ground on condoning free speech that does not serve the public concern. The Connick v. Myers case in 1980 dealt with a public employee Sheila Myers who was fired for circulating a 14-point questionnaire in which she asked about transferring and whether or not other workers were discontent with the office structure. [5] It turns out that Myers had been upset by the way an assistant district attorney Dennis Waldron proposed that she transfer to a different section of the criminal court, and she clearly objected to that request. When district attorney Henry Connick fired Myers for being disobedient to orders and creating a “mini insurrection” in the work environment, she sued and took her case to court. Connick may believe that Myers circulated the questionnaire to express internal and personal grievances about her transfer, just as the nursing manager in Freeman’s case may believe the coffee mug was meant to express personal matters. However, we don’t know for certain whether the content of Myers’ questionnaire had legitimate matters of public concern. Likewise, we don’t know Freeman’s intention for displaying her Magnolia Hospital coffee mug. The reasons may be completely legitimate, but in neither case were the litigants able to convince the Court that their speech was worth expressing.
In Freeman’s situation, the court ruled in favor of the defendant because the plaintiff Freeman did not engage in speech meant to highlight domestic violence as a matter of public concern. [3] As long as the speech does not address a matter of public concern, the speech is not guaranteed protection under the First Amendment. There’s no doubt that, as a public employee, Freeman fails to pass the test of “public concern.” Because of the very nature of the film her speech was bound to be unprotected. Keep in mind that a matter of public concern is one that is related to “any matter of political, social, or other concern to the community.” [6] None of these criteria are met in Freeman’s speech. Even if Freeman believed her speech did deal with a matter of public concern, there’s one more question that she must ask herself. That is, does her right to free speech outweigh her employer’s business reasons for restricting the speech? [6] As mentioned earlier, the company has a legitimate reason to believe that it should omit the Magnolia Hospital mug from the film to clear up any confusion that may arise among people who trust the hospital’s services. To protect its reputation and authority as a reliable place to seek service and medical attention, the hospital had to restrict Freeman’s speech. Likewise, Myers’ case does not adequately demonstrate public concern. As mentioned in the court case, while both Myers and Connick acknowledge that “speech about employees being pressured to work in political campaigns addresses a matter of public concern,” Connick and the majority of the Supreme Court believe no such pressure was exerted in the district attorney’s office. [5]
Judge Davidson noted in Freeman’s case that “even if the movie was one of public concern, the mug was not necessary to further that message.” [3] Just because the speech doesn’t further a message of public concern does not mean that the speech should be inhibited. There’s no harm done in showing the image of a coffee mug in a film that isn’t related to Magnolia at all. Overall, the support provided by the Court in this case was a bit weak. The employee didn’t even display her freedom of expression in the work environment, which by its very location gives the hospital no authority over its employee. However, because the content of the speech contained the Magnolia Hospital mug, it was inevitable for the hospital to get involved. As for the matter of public concern, once the employee’s freedom of speech was evaluated as a public worker and not an ordinary citizen, it was easy to apply the test of public concern on Freeman and prove that this criterion wasn’t met.
Sources:
[1] Freedom of Speech in USA for Employees of Private Companies
http://www.rbs2.com/freespch.htm
[2] Testing Whether the Government has Violated the First Amendment Rights of Employees
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/employpunishment.html
[3] Hospital worker fired over coffee cup in film loses claim
http://www.firstamendmentcenter.org/Speech/news.aspx?id=20925
[4] Free Speech Rights of Public Employees
http://www.michbar.org/journal/article.cfm?articleID=874&volumeID=66
[5] Balancing Act: Public Employees and Free Speech
http://www.firstamendmentcenter.org/PDF/FirstReport.PublicEmployees.PDF
[6] Government workers’ rights
http://www.las-elc.org/GovernmentWrksRights.pdf