Government Employees' First Amendment Rights

First Amendment RightsNew Jersey Government Employees First Amendment RightsPublic employees have constitutional employment rights because their employer is the government.  These rights include the First Amendment rights of free speech and political affiliation.

Our employment lawyers have extensive experience and have had considerable success fighting for the First Amendment rights of New Jersey government employees.

Government Employers Political Affiliation Rights

Both the Federal and New Jersey Constitutions give public sector workers the right to freedom of political thought and affiliation.  While some government appointments are properly “political appointments,” these are high level appointments who serve in policy positions.  The courts have explained that party affiliation may be taken into account “for an employee who acts as an advisor or formulates plans for the implementation of broad goals” – in other words, “employees for whom party affiliation is an appropriate requirement for the effective performance of the office involved.”  This is a small minority of New Jersey government employees.
The majority of public employees retain their political affiliation rights – this includes the right to support the Democrats, the Republicans, the Green Party, the Socialists, or not to support any party and candidate at all.  Federal and New Jersey courts have not addressed every possible government position, but they have found that the following jobs are examples positions which do have protected First Amendment political affiliation rights: Police sergeants, most county sheriff’s employees, including chief deputy of the process division; deputy sheriffs; assistant public defenders; deputy town clerks; deputy recorder of deeds; county deputy director of marketing; director of environmental education at the New Jersey Meadowlands Commission; and municipal housing inspectors.  Indeed, even independent government contractors have political affiliation rights.

Our attorneys fight for the First Amendment rights of New Jersey government employees whose political association rights have been violated by their government employers.

Public Employees’ Free Speech Rights

Our employment lawyers also fight for the free speech rights of government employees.

New Jersey public employees have the constitutional right to speak on matters of public concern without fear of retaliation.  These protections are contained in the First Amendment to the United States Constitution and Article I of New Jersey’s Constitution.  Not all speech is protected, but when the speech concerns government impropriety the courts have explained that it “occupies the highest rung of First Amendment protection.”  Government contractors, just like government employees, also have free speech rights.

Courts use a three part test to determine whether speech by a public employee is protected by the First Amendment.

  1. The employee must have been speaking in her role as a citizen rather in the course of her duties as a government employee.
  2. The employee’s statements must address a matter of “public concern” as rather than just her personal interest.
  3. Even if the employee was speaking as a citizen on a matter of public concern, the court will consider whether the employer had a legitimate reason for treating the employee differently.
So, for example, let’s say a Passaic County sheriff’s officer objected that the department wasn’t promoting women.  The court will look to see if it was the officer’s job to report this – for example, if it was her job to do a study of the Sheriff’s Department’s promotional practices and patterns, then it would have been her job and she is not protected.  Likewise, if the complaint was that other officers were discriminated against the speech is protected, but if she was objecting only that she wasn’t promoted then it is not protected by the First Amendment (although it would be protected by the New Jersey Law Against Discrimination and Title VII of the Federal Civil Rights Act of 1964).  Finally, if the Sheriff’s Department was laying off 20 officers by seniority, and she was the junior officer, then she would have been laid off anyway and would not have a suit.

Indeed, the free speech protections of the First Amendment of the United States Constitution and Article I of New Jersey’s Constitution can provide a remedy to government employees who have been the target of retaliation for their objections to illegal or wrongful activity by the government when they cannot meet one of the technical requirements of New Jersey’s whistleblower laws.

New Jersey Civil Rights Act & Section 1983

The free speech rights contained in the United States and New Jersey Constitutions are not self-enforcing.  By themselves, they do not offer a remedy for those whose rights have been violated.  For this reason both the state and federal governments have passed laws to allow people – including government employees – to sue when their rights are violated.

The Federal law is Section 1983 of the Civil Rights Act of 1871 (known as the “Ku Klux Klan Act”),  which was passed to ensure that freed slaves received the protections of the Thirteenth, Fourteenth  and Fifteenth Amendments, which were being violated by the Klan and government officials working with them.  The New Jersey Civil Rights Act provides a state remedy for violations of government employees’ civil rights.

Our attorneys have used both Section 1983 and the New Jersey Civil Rights Act to vindicate government employees’ First Amendment rights.

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Our attorneys have had considerable success fighting for the rights of government employees.  If your free speech or free association rights have been violated by your government employer call (973) 890-0004 or e-mail us. We can help.

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