First Amendment: government employees

Question 1

Hiring decisions

Answer 1

Generally, government employees cannot be hired or fired based on political party, political philosophy, or any act of expression.

Question 2

Hiring decisions: exceptions

Answer 2

The general rule does not apply to confidential advisors or policy-making employees—e.g., the president’s cabinet officers.

Question 3

Actionable employer violations

Answer 3

A government employee employee must show that she was speaking as a citizen on a matter of public concern when contending that her employer has violated her rights under the Free Speech Clause of the First Amendment.

Question 4

Actionable employer violations: balancing test

Answer 4

The First Amendment interest of the employee, once established, must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs.

Question 5

Government speech

Answer 5

The government as a speaker is not subject to First Amendment restrictions.

Question 6

Actionable employer violations: scope of employee’s duties

Answer 6

In determining whether a government employee is speaking pursuant to her official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.