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Other than a few very narrow exceptions, the First Amendment protects us from government attempts to punish or limit our expression. But what about the expression of public employees — people who, in some ways at least, act on behalf of the government as part of their jobs?

There are some  public employees across the country, from law enforcement officers to DMV clerks to geologists. And as the sheer number of public employees might imply, we aren’t really talking predominantly about high-ranking officials or folks with political roles. Rather, nearly all of these millions of workers are private citizens who ensure the day-to-day operations of our local, state, and federal governments function properly. 

Public employees and the First Amendment

Does the First Amendment protect public employees when they speak? Unfortunately the answer is the classic lawyer’s response: It depends. But there is a well-established test for making that determination.

When analyzing whether the First Amendment protects the speech of a public employee, the first question is: Did the public employee speak as a private citizen, or purely as an employee?

Say you’re a high school teacher who wants to speak about a proposed tax increase that would raise funds for the school. This was the situation in the bedrock public employee speech case, 1968’s Pickering v. Board of Education. Marvin Pickering was a high school teacher who wrote a letter to the local newspaper criticizing the school board for the way it distributed resources between educational and athletic programs. The board didn’t appreciate this criticism from one of their teachers, especially as they were in a fight to raise more money through taxes and bonds. So they fired Pickering. 

Pickering sued, and his case made it all the way to the Supreme Court. There, the Justices said teachers cannot be forced to give up the First Amendment rights they would have as citizens just by taking a job at a public school. But at the same time, the Court acknowledged the government does have a different relationship with its employees than it does with the general public.

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The Court’s solution to this problem was to balance “the interests of the teacher, as a citizen, in commenting upon matters of public concern” against “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.” And here, Pickering’s interest in speaking out about local schools the same way any other citizen could tipped the balance in his favor. 

The key is that Pickering was speaking as a private citizen, writing a letter to the newspaper like many other citizens do every day — even though his capacity as a teacher certainly colored his perspective and his commentary. In fact, it is precisely because teachers typically have extensive knowledge of public education that the Court determined they must be allowed to share their expertise with the community. That societal interest in hearing what public employees have to say, especially about the government functions they know best, is why the First Amendment protects state workers when they speak as private citizens on matters of public concern.  

“More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern,” the Court explained. “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.”

Contrast Pickering’s case with that of an employee who spoke as part of their official job duties. That’s what happened in the 2006 case Garcetti v. Ceballos, where the Court clarified the speech-as-citizen versus speech-as-employee issue. Richard Ceballos was a deputy district attorney in Los Angeles. One day, a defense attorney asked Ceballos to look into whether an affidavit used to obtain a critical search warrant contained some inaccuracies. Ceballos investigated and agreed the affidavits in question had some critical misrepresentations. So, he prepared a memo outlining his concerns and recommending the district attorney’s office drop the case. 

The Court reasoned that restricting speech undertaken as part of an employee’s official duties does not violate the First Amendment rights they would enjoy as a private citizen.

Ceballos’s supervisors declined his recommendation and proceeded with the case. But then, Ceballos claimed that after this dispute, the district attorney’s office retaliated against him by reassigning him job duties, transferring him to a different courthouse, and denying him a promotion.

What separates this case from Pickering is that Ceballos spoke not as a citizen but “as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case.” The Court reasoned that restricting speech undertaken as part of an employee’s official duties does not violate the First Amendment rights they would enjoy as a private citizen. This is because the government, as an employer seeking to ensure their employees are working well, has an important interest in regulating workers when they speak on the job as part of their duties. Public university professors are a special case and receive enhanced protection due to the academic freedom they enjoy, which we will discuss later.  

What is a matter of public concern?

So while a government employee’s speech is not protected if they speak as part of their official duties, Pickering and its balancing test applies when the employee speaks as a citizen on a matter of public concern. But what exactly makes something a matter of public concern? The Supreme Court instructed in Connick v. Myers that it is anything “relating to any matter of political, social, or other concern to the community.” And courts will decide this issue based on “the content, form, and context of a given statement.” 

It’s safe to say that any speech about government policies and activities is squarely speech on a matter of public concern — as are most academic debates on college campuses, even if they might seem arcane or trivial. After all, different communities care about different issues. The key difference is whether the speech is about a purely private workplace issue important to only that employee, as opposed to larger matters implicating government functions or societal values, such as official fraud or corruption.  

What about college professors? 

As explained above, Garcetti removed from First Amendment protection public employees’ speech or writing pursuant to their official job duties. However, you’d be correct to note this could have some unintended consequences for public college and university faculty, who necessarily teach and write as part of their job but who also benefit from the long tradition of academic freedom in our country. 

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The justices noticed this problem, too. The majority, responding to concern in the dissenting opinion of Justice David H. Souter that Justices John Paul Stevens and Ruth Bader Ginsburg joined, explicitly reserved the question of whether expression “related to academic scholarship or classroom instruction” by faculty at public colleges and universities could be restricted, even if the speech is pursuant to their job duties. Lower courts, including six courts of appeals, subsequently accepted the Court’s invitation to protect professors’ speech related to scholarship or teaching, even though it’s pursuant to their official duties.  Instead of being categorically unprotected, as Garcetti establishes for other public employees’ on-the-job speech, faculty have their interest in speaking on a matter of public concern balanced against the university’s interest in efficient operations — that is, they get the benefit of the Pickering balancing, even for on-the-job speech.

What if a rule prevents broad categories of employee speech before it happens?

The First Amendment limits broad regulations on speech in addition to the targeted punishments such as those in cases like Pickering or Garcetti. So the question of such regulation in the context of public employee speech arose in the 1995 case United States v. National Treasury Employees Union, where a federal employee union challenged a law prohibiting government employees from accepting honoraria for giving speeches or writing articles on matters of public concern. The Supreme Court held that because this law was a “wholesale deterrent to a broad category of expression by a massive number of potential speakers,” the government would have to clear an even greater hurdle than the one set in Pickering. 

That test, according to the Court, was whether the government could show that any “necessary impact” on the government’s “actual operation” outweighed “the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression.” Even though the law wasn’t an actual prohibition on employee speech, and instead deterred speech by banning honoraria, the government could not show its interests outweighed the massive effect of its regulation.

By Josh Bleisch — Last updated June 16, 2025