Over the years, the free speech rights of government employees have changed a lot. In 1968, the Supreme Court made a rule that balances an employee’s right to speak out with the needs of the government to run smoothly. Then, in 1983, the Court said that only speech about public issues is protected, not personal matters. And in 2006, the Court said that any speech made as part of a government job is not protected by the First Amendment. The Pickering Court said government employees can’t say whatever they want while on duty, but they can speak freely as citizens when they’re off duty as long as it doesn’t cause problems at work. The Connick case said even if a government employee talks about something important to the public, they might not be protected if they do it for their own benefit. The Garcetti case said that when a government employee speaks at work, it’s considered the government’s speech, so the government can control what they say. In the Garcetti case, a prosecutor criticized his office’s treatment of a defendant and the Supreme Court ruled that his speech was not protected because it was made as part of his job. But in another case, the Court decided that a college administrator’s testimony in court was protected because he spoke as a citizen, not just as an employee. The Court said that whether speech is made as a citizen or employee depends on whether it’s about public issues and whether it’s essential to the job. This shows that speech made by an employee can still be protected by the First Amendment. The Supreme Court recently looked at the Garcetti case again in a case involving a high school football coach who was fired for praying on the field after games. The Court ruled that the coach’s prayers were protected by the First Amendment and he should not have been fired. This decision shows that public employers cannot use overly broad job descriptions to restrict employees’ constitutional rights. This has also been important in other cases where state entities have tried to control employees’ speech. Governor DeSantis suspended State Attorney Warren because of his progressive policies and advocacy. Warren sued, saying his First Amendment rights were violated. The court agreed and said that four of the reasons for the suspension violated the First Amendment. The court also said that Warren was speaking as a citizen, not as a government employee, so his advocacy was protected. The court also said that advocacy wasn’t a requirement of Warren’s job, so it was protected. The Stop-WOKE Act, also known as the Individual Freedom Act, was passed in Florida and contains rules for schools and workplaces. It says that people should not be treated differently or discriminated against based on their race, color, national origin, or sex. It also says that no one is morally superior or inferior based on these things, and that people shouldn’t be made to feel guilty for things they didn’t do in the past. These rules apply to colleges, schools, and workplaces. Some people think that teaching certain values like hard work and fairness is discriminatory. There are laws that say schools and businesses can’t force people to believe in these values. A judge stopped these laws from being enforced. The defense in Pernell argued that the anti-WOKE law was unconstitutional because it targeted specific viewpoints and restricted freedom of speech. They also compared it to other laws that protect against harassment, but the court disagreed and ruled that the law was unconstitutional because it discriminated against certain viewpoints. The Honeyfund case had similar arguments and the appeals court also ruled that the law was unconstitutional. However, there may be some confusion about how the law applies to government employees who are not employed by colleges or schools. The court found that the law in question discriminates against certain viewpoints. The state’s argument about protecting its residents from certain speech was rejected. The state’s appeal is still pending, but the injunction against the law remains in place. The trend of federal courts declining cases involving constitutional rights on the grounds of standing has been noted. Standing is the idea that you have to have a real stake in a case to bring it to court. It’s been a problem throughout our history, but it’s important to make sure people are using it honestly. Some judges have criticized how complicated and detailed the rules about standing have become, and how they can seem to be used to avoid addressing real problems. It can be frustrating for judges and can make it hard for them to make fair decisions. In the DeSantis era, there have been controversial cases involving public employee rights and free speech. One case involves Disney’s First Amendment violation, which is on appeal. Another case involves a statute barring minors from drag shows, with the court granting an injunction against it. The state appealed, but the injunction was upheld. The state then petitioned the Supreme Court for a stay, which was also denied. There’s also a case about a Florida statute trying to prevent social media platforms from censoring political candidates, which is still pending a decision from the Supreme Court. In cases involving free speech for public employees and others in the DeSantis era, most plaintiffs who get a decision on the merits win. But it’s been hard for many cases to even get a decision because of standing requirements. If plaintiffs wait to actually suffer harm before suing, they have a better chance of winning. Some uses of standing to stop cases from moving forward may not be fair. Richard Johnson is a lawyer who specializes in labor and employment law. He represents employees in cases involving their rights at work.
Source: https://www.floridabar.org/the-florida-bar-journal/changing-landscape-of-public-employee-free-speech-in-florida/
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