Legal Memorandum: First Amendment Right and Wrongful Termination

Issue: Whether, under Connecticut law, an employment discharge is in violation of First Amendment right to speak on issues relevant to a political campaign.

  Section 31-51q of the Connecticut Statutes provides that:

Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state,*FN1 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, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages.  If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney’s fees to the employer.

Conn. Gen. Stat. § 31-51q (1997).  Construing actions for wrongful termination under 42 U.S.C. § 1983, the United States Supreme Court has held that the public employee does not relinquish his or her First Amendment rights to comment on matters of public interest by virtue of his or her public employment.  Connick v. Myers, 461 U.S. 138, 140 (1983) (citing Pickering v. Bd. of Educ., 391 U.S. 563 (1968)).*FN2 

To show a violation of § 31-51q, a person must prove that they were an employee, […]