Civil Rights

Do Some People Have Limited Free Speech Rights?

By E.A. Gjelten, Author and Editor
Government has more leeway under the First Amendment to restrict speech by public school students, public employees, and prisoners.

Everyone living in the U.S. has the right to freedom of expression under the First Amendment. But not all American residents enjoy the same level of protection when they speak their minds. For different reasons, the U.S. Supreme Court has given government more authority than usual to restrict speech by public school students, public employees, and prisoners. (Because the First Amendment only protects speech from restrictions by government, private schools and employers have even more latitude when disciplining students or employees for what they say or write.)

Also, some people who aren’t legal permanent residents—including undocumented immigrants and temporary visa holders—may face certain limits on their freedom of expression. (For more details, see our article on immigrants’ free speech rights.)

K-12 Schools

As the Supreme Court has said, students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)). But the Court also recognized that First Amendment rights for children in K-12 schools may be more limited than for adults in other settings, partly because schools have an obligation to keep students safe and provide a good learning environment. So school officials may discipline students for how they express themselves in certain situations, such as when the speech:

  • would probably be disruptive
  • is lewd
  • encourages illegal drug use, or
  • is part of classwork or school-sponsored communications.

(For more details, see our FAQs on freedom of expression for students.)

Public Employees

Somewhat like students in public schools, employees don’t give up all of their free speech rights just because they work for the government. Still, public employers may discipline or fire employees for what they say, write, or post online in certain circumstances. Over the years, the Supreme Court has set out guidelines for deciding when government employees have the right to speak their minds without interference from their bosses, depending on the context and content of their communications.

On-Duty Communications

The First Amendment doesn’t protect anything employees say or write as part of their job. This is true even when they’re communicating about important issues like government misconduct. (Garcetti v. Ceballos, 547 U.S. 410 (2006).) Some states have laws protecting whistleblowers, but their safeguards vary.

In a 2014 case, the Supreme Court made it clear that even when public employees are talking about information they learned at work, the Garcetti rule won’t apply if their communications aren’t within the scope of their official duties. So, for example, the First Amendment protected a university employee’s testimony in court about the school’s misuse of public funds. (Lane v. Franks, 134 S.Ct. 2369 (2014)).

Off-Duty Speech on Public Issues

The First Amendment might protect public employees when they speak out as private citizens about matters that would concern the general population—such as corruption, inefficiency, mismanagement, or discriminatory policies at governmental agencies. In a situation like this, courts will balance the employee’s free speech rights against the employer’s need to carry out its public service efficiently and without disruption. (Pickering v. Board of Education, 391 U.S. 563 (1968).)

In practice, courts generally defer to the public employers’ judgment about this balancing test. As a result, public employees are often disciplined or fired for off-duty posts on their private social media accounts that shed a bad light on the agencies they work for. But at least one federal court found that a police department crossed the First Amendment line by instituting a policy that prohibited its employees from posting any negative comments that might affect the public’s perception of the department (Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. 2016)).

Public Employees’ Private Gripes

Government employees generally don’t have a constitutional right to air their private grievances with their employers, particularly when their speech undermines office relationships and the boss’s authority (Connick v. Myers, 461 U.S. 138 (1983)).

Prisoners

Prisoners have the right to express their political views, but prison and jail administrators have a lot of leeway to restrict how and when inmates can express themselves and what they can read. Those restrictions must be related to “neutral” goals like security rather than an attempt to censor certain viewpoints. For instance, prisons can censor incoming mail, limit and monitor phone calls, and prevent prisoners from books that are dangerous or pornographic. (For detailed information on this complicated area of the law, see the Jailhouse Lawyer’s Handbook, published by the Center for Constitutional Rights.)

Questions for Your Lawyer

  • I was fired as a police officer for texting jokes to fellow officers (on my personal phone), after the media got ahold of the texts and branded them as racist and homophobic. Can I make the department reinstate me on First Amendment grounds?
  • Did the fire department violate my free speech rights by suspending me after I posted what my bosses called “inflammatory” comments about a political candidate on my personal Facebook page?
  • As part of my volunteer work teaching creative writing at a federal prison, I bring in copies of short stories and essays to share with the class. Prison officials have told me I can’t use one of the essays, because it could agitate the inmates and provoke violence. I think the administrators just don’t like the author's radical political viewpoint. Can I challenge their decision?
  • My uncle is in a privately run prison that won’t allow the inmates access to any newspapers or magazines. Can he sue the prison for violating his constitutional rights?
Go to main FAQ page on the First Amendment and free speech.
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