Privacy Issues in the Workplace

ii. Exception – Freedom of Expression Speech Protected by California Constitution and First Amendment Freedom of expression is protected by the First Amendment of the United States Constitution, as made applicable to the states by the Fourteenth Amendment. ( Stanley v. Georgia (1969) 394 U.S. 557, 559.) "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." (U.S. Const., Amend. I.)

The California Constitution also protects the right of free speech. It provides:

"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, § 2, subd. (a).)

In the 1968 decision Pickering v. Board of Education , the United States Supreme Court made it clear that public employers generally cannot stifle the First Amendment rights their employees would otherwise enjoy as citizens in commenting on matters of public interest. 566 However, the Court also recognized that public employers have an interest in the effective and efficient fulfillment of their responsibilities. 567 Therefore, a public employer’s ability to maintain workplace efficiency must be balanced against a public employee’s interest as a citizen in commenting upon matters of public concern. The test in Pickering (which in 2014 the Ninth Circuit determined is applicable to speech by professors and teachers) 568 is: (1) whether the academic speech addresses matters of public concern and, if so, (2) whether the employee’s interest in the speech outweighs the educational institution’s interest in providing efficient public services. 569 Starting with Pickering v. Board of Education 570 and evolving with Connick v. Myers 571 and Garcetti v. Ceballos 572 , the United States Supreme Court has developed a balancing test to determine when a public employee can assert a First Amendment retaliation claim. Such claim can be asserted only if: (1) the public employee spoke on a matter of public concern, (2) the public employee spoke as a private citizen rather than as a public employee, i.e., if the speech was not a result of the employee’s “official duties,” and (3) if on balance, the government had no adequate justification for treating the employee as it did, i.e., the public employee’s interest as a citizen in commenting upon matters of public concern outweighs the interest of the public employer in promoting the efficiency of its public services. 573 Garcetti , however, does not apply to academic speech, which follows the test in Pickering . 574 In Dahlia v. Rodriguez, the Ninth Circuit held that a Burbank police detective could assert a First Amendment retaliation claim based on his complaints to superiors about alleged abusive interrogation tactics at his department. 575 However, compare Dahlia to Hagen v. City of Eugene 576 , where the Ninth Circuit held that a police officer who reported safety concerns to his supervisor and other departmental sergeants did not speak as a private citizen because the police department required officers to immediate

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 175