presented by: mark meyerhoff let’s talk politics and religion: first amendment issues in the...
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Presented by:
Mark Meyerhoff
Let’s Talk Politics and Religion: First
Amendment Issues in the Workplace
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PublicEmployment
PublicCitizen
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First Amendment Conflicts
• Conflict between public employment and right to free speech as a citizen
• Right of free speech v. need for government to run efficiently
• Right of free speech v. right of government to provide harassment-free workplace
• Right of free speech v. prohibition on government endorsing a particular religious viewpoint or position
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What First Amendment Rights Does a Public Employee Enjoy?
• Public employees have right to engage in speech that is a “matter of public concern.”
• Public concern = any speech that is not related only to a personal grievance or dispute.
• Religious and political speech will likely always be protected.
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Must the Government Allow Any First Amendment Speech?
• Fact that speech is “matter of public concern” does not mean government must allow employee to engage in speech.
– First Amendment rights v. need for government to run efficiently
– Harassing speech can be prohibited
– Establishment Clause concerns (religious speech)
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How Can Employer Show Disruption to Efficiency of Government?
1. Speech impaired discipline or control by supervisors
2. Speech disrupted co-worker relations
3. Speech eroded close working relationships premised on personal loyalty and confidentiality
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How Can Employer Show Disruption to Efficiency of Government?
4. Speech interfered with speaker’s performance of his/her duties.
5. Speech obstructed routine office operations.
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Other Disruption Factors
• Reasonable predictions of disruption may be sufficient
• Speech by policy makers v. speech by rank and file
• How broadly was speech disseminated
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Types of Religious Speech
• Displaying personal religious items (Bibles, posters, messages, etc.)
– Where are items kept?
– Are employees allowed to display other non-work related items?
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Types of Religious Speech
• Posting of religious messages
– Consider and enforce rules regarding posting of other non-work related material
– Are other non-work related postings allowed?
– Are rules content-based or content-neutral?
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Types of Religious Speech
• Proselytizing – “Spreading the faith”
– Consider any disruption
– Broad prohibitions on religious speech likely unlawful
– Consider potential harassment issues
– Is there coercion on behalf of the speaker?
– Does speech violate Establishment Clause
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Types of Religious Speech
• Displaying religious messages on clothing
– Are other messages permitted?
– Can messages or postings reasonably be seen as government endorsement of religion?
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Coercion
• Government can prohibit speech which requires participation in religious activities as a condition of employment, promotion, salary, etc.
– Is speech merely personal view or an implied requirement of employment
– Consider whether speaker is in position of authority
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Establishment Clause Considerations
• Consider audience of religious speech – co-worker v. member of public
• Consider forum in which speech is made – work area v. area open to public
• How would reasonable person view the speech
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Examples of Speech That Could Violate the Establishment Clause
• Prayers at public meetings or events
• Display of religious items in public places
• Religious speech by high-ranking official
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Political Speech in the Workplace
• Most likely speech of “public concern” and thus entitled to First Amendment protection.
• Usually analyzed under balancing test
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Types of Political Speech
• Controversial political statements
– Balancing test invoked
– “Potential disruption” can be sufficient
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Types of Political Speech
• Endorsement of particular political candidate
– Employee challenging incumbent
– Employee endorsing candidates for public office
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Types of Political Speech
• Wearing political messages
• Bumper stickers
• Posting political messages
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Types of Political Speech
• Political affiliation
– Employment decisions made on basis of affiliation or non-affiliation of employee with a political party
– Violates the Constitution
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Types of Political Speech
• Speech related to organized labor
– Labor criticizing management
– Balancing test applies
– Consider whether speech is personal grievance or legitimately a matter of public concern