Legal Memorandum: Employee's Right to Free Speech

Issue: UNDER CONNECTICUT AND FEDERAL LAW, WHAT CONSTITUTES WRONGFUL DISCHARGE WHEN AN EMPLOYEE HAS EXERCISED FREE SPEECH RIGHTS? ![TEXT:

Connecticut General Statute § 31-51q provides that an employer is liable for discharging an employee on account of the employee’s exercise of her First Amendment right to free speech, “provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”  Conn. Gen. Stat. § 31-51q (2001).  In cases such as this, the employee may recover the damages caused by the discharge from employment, as well as punitive damages and reasonable attorney’s fees.  Id. 

Central to a constitutional democracy is the right to speak freely on political or social issues without fear of retribution by the government.  See generally Palko v. Conn., 302 U.S. 319, 327 (1937) (stating that freedom of speech is “the indispensable condition of nearly every other form of freedom”).  As Justice Holmes noted decades ago, “[w]e should be eternally vigilant against attempts to check the expression of opinions that we loathe . . . , unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”  Abrams v. United States, 250 U.S. 616, 630 (1919). 

The protection against government retaliation for speech extends to the government’s own employees.  “It is well settled that persons do not relinquish their first amendment rights to comment on matters of public interest by becoming government employees.” Rankin v. McPherson, 483 U.S. 378, 383-84 (1987).  The need […]