Everyone knew 2020 would be an election year. Few could have predicted the election would take a backseat to a pandemic, murder hornets and nationwide public protests in the news cycle. Such is the world these days. And, in such a world, the breadth, intensity and importance of public discourse is even more magnified than the usual election cycle.
For municipalities, that intensity and expanded scope of topics upon which citizens speak can pose special challenges. No time is better for a reminder of the special attention that municipalities must pay to issues of freedoms of speech and expression.
On the most basic level, the First Amendment imposes limits on government restrictions on a person’s right to speak. Not only does the First Amendment apply to municipal governments when they interact with the public generally, but it also affects how a municipal government may interact with its employees in its capacity as an employer. In this sense, public and private employers face much different First Amendment challenges. With some exceptions, private employers are free to establish policies limiting the speech of their employees.
As a public employer, your ability to do so is limited, even though the need to restrict certain types of speech may seem paramount. Luckily, the courts recognize the unique circumstances that public employment poses with respect to speech and expression and employers may restrict speech where:
- The employee’s speech is not a matter of public concern; or
- Even if there is some public concern, the public employer’s interest in delivering efficient and effective public service outweighs the employee’s interest in speech (which itself involves a multi-factor analysis).
The second scenario is likely to be particularly important where municipalities have an interest in providing consistent public messaging about risks, restrictions and guidance regarding COVID-19.
Beyond employment matters, municipalities should be mindful of First Amendment implications regarding:
• Social media presence;
• Public comment at meetings;
• Criticism of public officials; and
• Public gatherings for the purpose of expressing a political or social agenda.
Municipalities who maintain a social media presence should also keep the First Amendment in mind where allowing public comment may create a public forum; if the municipality then attempts to remove commentary from private individuals, it may risk exposure to First Amendment claims. They should also be aware that individuals have certain rights to speak, gather and associate to express their beliefs, and any restrictions of the same must meet rigorous requirements. These considerations are particularly important where attention to political, social and economic issues is heightened due to Covid-19 and the 2020 election.
Accordingly, municipalities and public employers should take this opportunity to review, with the assistance of qualified legal counsel, their policies and procedures as they relate to workplace speech, public gatherings, and social media, to ensure that they are consistent with the First Amendment and its implications.
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