Employment Law

The First Amendment and Burping

At the beginning of one episode of The Simpsons, Bart is seen writing “The First Amendment does not cover burping” on the blackboard. Although the First Amendment to the U.S. Constitution states that “Congress shall make no law abridging” freedom of speech, more than two centuries of practical application have taught us that even the word “no” has limitations. As anyone who has taken an undergraduate communications law course can tell you, given our society’s interest in maintaining order and protecting life, the First Amendment doesn’t allow someone to yell “Fire!” in a crowded movie theater. And teachers have certain authority to control their classrooms, even if that limits Bart’s right to belch.

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Similarly, although public employers must respect their employees’ free-speech rights, public employees cannot look to the First Amendment as a “Get out of jail free” card in all disciplinary situations. For instance, if a public employee speaks “pursuant to his official duties,” the government may have the right to control and punish his speech, as the former IT manager for Tulsa County, Oklahoma, recently learned. His case can help public employers that may be wondering when they can discipline an employee for his speech.

The Upset IT Manager

The transition to a new medical provider at the Tulsa County Jail caused the county’s IT manager, Tom Trimble, significant concern. Because of the change, a new electronic medical records system had to be installed at the jail. According to Trimble, the county’s undersheriff decided that he didn’t need to be involved in the system change. Trimble disagreed.

Over the course of several months, both before and after the new system went live, Trimble sent the Tulsa County Board of Commissioners several letters explaining his concerns about network security, the new technology, the new service provider, the process by which the technology was being installed, and the manner in which the county communicated with and used the IT department. After several months of being inundated by Trimble’s concerns, one of the commissioners initiated an audit of the IT department. After the audit, the board placed Trimble on paid administrative leave. A month later, the board terminated his employment.

Trimble sued the board, alleging it had illegally retaliated against him for expressing his concerns about the jail’s new medical records system, in violation of his rights under the First Amendment to the U.S. Constitution. Because all of his communications to the board were made as a result of his official duties as the county’s IT manager, the trial court dismissed his lawsuit. Trimble appealed the trial court’s decision to the 10th Circuit.

Statements Made in Course of Official Duties Are not Protected

Generally speaking, if the government—which includes government employers—punishes someone for his protected speech, his First Amendment rights may very well have been violated. But that isn’t the end of the analysis. For instance, when faced with Trimble’s argument, the 10th Circuit clarified that even if everything he stated was true, his First Amendment rights hadn’t been violated because all of his communications were made in the course of his official duties.

According to the court, “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Although a public employer cannot use the employment relationship to limit the liberties that all private citizens enjoy, that doesn’t mean it cannot restrict an employee’s speech or discipline an employee for engaging in objectionable speech as part of his official duties. As the court explained, “There is no constitutional protection because the restriction on speech simply reflects the exercise of employer control over what the employer itself has commissioned or created.”

Looking at the facts in Trimble’s case, the 10th Circuit decided that all of his communications were made as a result of his employment as the county’s IT manager. His job responsibilities included (1) providing input on the decision to replace the medical provider, (2) being involved in integrating the new medical records system with the county’s network, (3) protecting countywide operations, and (4) approving equipment that would be connected to the county’s network. All of his communications with the board fell somewhere within those official responsibilities.

Because Trimble only communicated with the board as a result of and in connection with his official duties, there was no way his termination could have violated the First Amendment, even if everything he alleged was true. Trimble v. Board of County Commissioners of Tulsa, Oklahoma, No. 17-5058 (10th Cir., March 14, 2018).

Lessons Learned

Our current First Amendment jurisprudence is nuanced and the result of more than 200 years of weighing competing interests and values. Because public employers—just like private employers—must have the ability to discipline employees and control their workforce, there are times when First Amendment protections may be limited. As Trimble’s case shows, if a public employee speaks to his employer in connection with carrying out his official duties, his speech likely is not protected. Public employers should be grateful for that because it means they can discipline unruly, disrespectful, or insubordinate employees, and the employees cannot seek protection behind the First Amendment.

But it’s important to remember that every situation is different, and minor differences may alter the outcome. For instance, if another county employee who didn’t have the same responsibilities as Trimble had made the same statements Trimble made to the same people, the other employee’s speech might have been protected, and any action taken against him on the basis of that protected speech would be illegal. The question isn’t simply “Is a public employee speaking to the government?” but rather “Is a public employee speaking to the government in connection with performing his official duties?”

Brinton Wilkins, an attorney with Kirton McConkie in Salt Lake City and an editor of Utah Employment Law Letter, can be reached at bwilkins@kmclaw.com or 801-328-3600.