First Amendment Retaliation

Labor & Employment Law

First Amendment Retaliation

Does the First Amendment protect me at work?

The First Amendment of the Constitution of the United States of America protects five basic freedoms:

  • Speech;
  • Religion;
  • Press;
  • Assembly; and
  • The right to petition the government.

If your employer is a government or public entity your rights under these freedoms are protected under certain conditions.  However, the First Amendment does not prevent a private employer from limiting these freedoms and you do not have the same protections as a government employee.

What is Freedom of Speech?

Your freedom of speech is broadly defined by the First Amendment.  It includes:

  • Spoken complaints;
  • Remarks made on social media;
  • Language in communications such as emails, letters, etc.;
  • Some symbolic, non-verbal, and non-written forms of communications may also be protected speech, such as “liking” something on Facebook®, or labels on clothing.

However, it is not without limits. In fact, in many instances, your government employer can limit your right to free speech.

What are the limitations on my freedom of speech?

Although you have freedom of speech, it is not without its limitations.  In other words, your employer can still take adverse action against you for your speech in the following situations:

  • If your statement or actions is to further your own personal interest, rather than to raise a concern of the greater public, your speech is not protected. For example, if you express your frustration about how your boss runs your department, you would not have First Amendment protection, unless your statement somehow implicates a larger concern of the public, such as in instances of fraud or gross waste of public funds.
  • Even if you raise an issue of public concern, your government employer can still restrict your speech if its disruptive effect on the workplace outweighs your interest in making the statement, again making your speech unprotected.
  • Moreover, if your action is something that was part of your regular governmental duties, you may not have First Amendment protection. For example, if you work in human resources and your job duties include reporting incidents of discrimination, your disclosure of such discrimination may not be protected.

What does it mean to have Freedom of Association?

Although freedom of speech is the most common First Amendment right, the First Amendment also protects governmental employees’ freedom of association. Generally speaking, freedom of association encompasses both expressive and intimate association. Expressive association is interpreted as more “political” action, whereas intimate association deals mainly with your right to associate in marriage and familial living arrangements. Unlike your freedom of speech, your freedom to associate is protected even where it does not implicate a matter of public concern.

However, like freedom of speech, your right to associate must not outweigh your employer’s interest in running a non-disruptive workplace.

How does the Right to Petition the Government affect me?

In addition to freedom of speech and association, the First Amendment also protects an individual’s right to petition the government to seek redress of grievances. This means a public employee has an inherent right to file a grievance without fear of retribution. However, like freedom of speech, the First Amendment only protects an employee’s petition if it relates to a matter of “public concern.”

When must I file a First Amendment retaliation claim?

State and local public employees must initiate a claim of First Amendment retaliation in Florida within four years of when you knew or should have known of the retaliation or adverse action because of your first amendment protections.

There is a different scheme for federal government employees, which can include shorter time frames for filing claims as well as administrative requirements that must first be exhausted.  Federal employees should consult experienced counsel to advise you on the proper steps and time frames for filing a First Amendment retaliation case.

What can I recover for a First Amendment retaliation case?

If the employer is a state entity (i.e. not a local government, city, town or county) you cannot sue the state or state actors in their official capacity for money damages, because they have 11th Amendment immunity.  Instead, you could recover injunctive relief ordering the state to stop the retaliation.

However, against other government entities (municipalities, towns, counties, etc.), you may be entitled to a broad range of damages, including:

  • Back pay;
  • Front pay; and
  • Compensatory damages.

Another option is to sue state or other public officials in their individual capacities, to recover compensatory and punitive damages. Attorney’s fees may also be recoverable.

We fight for the rights of government employees.  If you are a public or government employee and feel that your First Amendment rights have been violated, schedule a consultation to understand your rights and discuss what remedies and other options are available to you.

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