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vincentML -> RE: Is this free speech? (8/3/2013 5:27:16 PM)
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quote:
-However, there is another factor the courts have taken into consideration, and it is where Vincent's statement falls short. The other exception to speech by public employees and the first amendment is in the ability to do their job effectively and to promote a positive image of the government. This has been upheld by both state and federal courts, and it applies in this case. A public employee serves the public good, not just his/her own interests, and in doing so needs to maintain an image for himself and for the position he is in, of fairness and working for the whole public. If a private belief clashes with this the right to express that or act on those beliefs is limited by what is in the good of the department and the public good.
Lauren raises two interesting exceptions to Constitutional protection for public employee speech: 1) ability to do the job effectively, and 2) good public image.
By 1967 The Court took the position that public employment cannot be conditioned on a surrender of constitutional rights. The problem for the Court then became how to balance the government's interest in maintaining an efficient public workplace against the individual employee's interest in free expression.
In Pickering In ordering the teacher reinstated, the Court found that a public employee's statements on a matter of public concern could not be the basis for discharge unless the statement contained knowing or reckless falsehoods, or the statements were of the sort to cause a substantial interference with the ability of the employee to continue to do his job.
Does "substantial interference" come into play here? Not according to the grounds for action against Kessler given by this small town board IMO. He was suspended for using Township property.
in Mt. Healthy v Doyle Doyle was fired for reasons other than complaining to a call-in radio program. SCOTUS remanded the case to determine if Doyle would have been fired absent the free speech protection. If so he would be out of luck.
Gilberton suspended Kessler for improper use of town property. All they would have to show is they had grounds for suspenson absent the speech issue. IMO Kessler would lose.
Please notice that in both Pickering and Doyle the employees identified themselves as school teachers. Seems to me Kessler is not in jeapordy for identifying himself as a police chief.
That leaves us with Lauren's second issue: the public employee has a duty to maintain a good public image. It would not surprise me if a state law or town ordinance demanding such a duty would be upheld by SCOTUS but I was not able to find a case. Maybe Lauren can supply one on point. This reminds me of the old morals clauses. Again Gilberton Township did not raise this as an issue . . . yet.
The Township of Gilberton school board has deftly danced around the protected speech issue IMO. [:D]
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