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July 28, 2022
SPECIAL UPDATE Shooting the Messenger: First Amendment Freedom of Speech and the Public Employee

By Robert Phillips, Deputy District Attorney (Ret).

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The First Amendment to the United States Constitution provides Americans with five basic freedoms: Freedom of speech, press, petition, assembly, and religion.  While all five are certainly important, the freedom of speech—sometimes referred to as the “freedom of expression,” and often recognized as the cornerstone of America’s democracy—is arguably the most cherished of the five.

Then along came “social media,” available to anyone with access to a computer and coming in a wide variety of forms; i.e. Facebook, Snapchat, Twitter, Instagram, and many others.  The advent of social media suddenly empowered the quietest and most introverted of citizens—to whom no one ever before paid attention—with the ability to broadcast his or her views—unpopular or not; truthful or not—around the world with the stroke of a computer key.  And along with this new-found uncontrolled power in the exercise of our freedom of expression—sometimes used without giving the words we use or the ideas we express a lot of thought—came the propensity for getting ourselves in trouble.

But we’re getting ahead of ourselves.  The purpose of this article is to discuss the sometimes contradictory, and most often confusing, case authority that has sought a balance between a public employee’s (including a prosecutor’s and a cop’s) First Amendment inherent freedom of expression, with his or her employer’s right to impose restrictions on that employee’s rights, at least when the challenged speech affects the employer’s smooth and efficient operation of his or her office.

One of the first cases involving a prosecutor getting herself into trouble by exercising what she believed at the time to be her constitutionally protected freedom of speech rights is the United States Supreme Court decision of Connick v. Meyers.(1983) 461 U.S. 138 [103 S.Ct. 1684; 75 L.Ed.2nd 708].

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