General Practice, Solo & Small Firm DivisionBest of ABA Sections
Government & Public Sector Lawyers
Lawyers’ Free Speech Rights and Wrongs: Ethical Limits, Recent Trends, and Case Law
Daniel L. Skoler and Steven Kiviat
The public lawyer, whether judge, litigator, legal advisor, administrative adjudicator, or office chief (or any combination of the foregoing) is necessarily a specialist in analysis, communication, expression and the mobilization of ideas, opinions, and the written word. It follows that values and rights of speech and expression and the restrictions imposed on such activities in both professional and personal lives must be and remain matters of paramount importance to the government and public sector lawyer.
Recent years have witnessed much movement and change in standards, case law, and prevailing societal views on this subject. It has been rife with challenging questions. For example: Can a regulatory commission lawyer be barred by the federal Ethics in Government Act from receiving an honorarium for an article on seventeenth-century Russian history that he wrote for a private publication on his own time? Can a full-time, salaried administrative law judge who is also engaging in private practice of law, including work sometimes done during official hours, defend this activity as constitutionally protected by First Amendment rights? Can a state health department lawyer be transferred out of her lead attorney position for attending a legislative hearing on abortion funding after being denied permission to do so by her superior? Can a judge be disciplined for speech deemed hostile to minorities expressed off the bench? Can a local prosecutor dissatisfied with office morale and professional leadership, as well as her own work assignment, poll colleagues on these and related subjects and rely on First Amendment rights as protection from disciplinary action? Have the recent Hatch Act reforms had any effect on the degree to which a government lawyer can be involved in political expression and activity?
Disciplinary Sanctions for Public Lawyer Speech. The speech and expression prohibitions on government lawyer activity equate to those applicable to government employees generally and there exists a fairly rich body of federal and state case law outlining the limits under which government officials may impose restrictions, discipline, and sanctions for conduct involving or related to the expression of employee opinion and views. The cases have not always involved lawyers. Indeed, the key Supreme Court precedent seems to have sprung from speech or expression by nonlawyer civil servants and, perhaps most frequently, teachers and educational officials. In Pickering v. Board of Education, 391 U.S. 563 (1968), the Supreme Court ruled that a public official must be accorded broad First Amendment protection for statements on matters of legitimate public concern. Such protection was deemed in order even where the speech included false or erroneous material, at least when not knowingly or recklessly introduced.
Pickering and later cases have nevertheless recognized the legitimacy of balancing and limiting free speech rights of public employees in situations of public commentary harmful to the interests of efficient operation and administration of public institutions or injurious to discipline, harmony, and confidence between and among public employees and their leaders. Accordingly, the courts have been obligated to scrutinize the nature of the commentary (was it truly a matter of public concern?), the actual motive for disciplinary imposition (was it really imposed because of speech?), and whether even "legitimate public issue" statements so endangered governmental operation as to undermine the efficiency of public services.
The foregoing kinds of "balancing" considerations were evident in a string of high court cases that followed Pickering. Outcomes have varied as between complaining public employees and defending government agencies but they invariably support the conclusion expressed by Justice Sandra Day O’Connor that "many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees," Waters v. Churchill, 114 S. Ct. 1878 (1994). Indeed, one of the post- Pickering cases arose in a government law office. The Court, in a 5-4 decision, in Connick v. Myers, 461 U.S. 138 (1993), ruled that for a government employee’s speech to be protected by the First Amendment:
. . . the speech must be on a matter of public concern, and the employee’s interests in expressing herself on this matter must not be outweighed by any injury the speech could cause to "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
The Court majority found that a questionnaire circulated in the office by an assistant district attorney concerning attorney transfer policy, office morale, trust in supervisors, and the need for a grievance committee was largely an office policy matter not within the public concern, and constituted conduct and expression disruptive of governmental functioning. Under these circumstances, the lawyer’s basic rights to expression of opinion could not be asserted to outweigh employer concerns regarding control of the atmosphere and maintenance of authority in the office, and a discharge by her employer was deemed justified.
The Present Landscape. With caution as to the dangers of overgeneralization in these delicate "basic rights" and "fact heavy" balancing situations, the authors offer the following as the current direction of "free speech" protection for public lawyers:
Public lawyers, like all citizens, enjoy precious constitutional rights to hold and express views. However, the law has long recognized and imposed restrictions on speech activities, derived from the status and work of government employees and legal professionals, that do not apply to other individuals. The rationale involves maintaining the efficiency and integrity of the public service.
The courts have shown themselves quite ready to resolve the balance between public lawyer speech rights and governmental efficiency/integrity interests in favor of the latter.
Speech related to legitimate public issues and concerns (whether national or local) tends to fare much better as a defense to sanctions or restrictions imposed on government lawyers, but is not an absolute protection.
Speech of a deprecating, humiliating or biased character, even on public issues, fares less well against imposition of employer sanctions and prohibitions—not unexpected with the criterion of tendency to undermine efficiency or authority as an important element in the balancing equation.
Speech necessary or incident to direct operation of the justice system seems to command greater leeway than impatient, discourteous or angry statements such as bench comment or rulings in trial proceedings.
Speech in the courtroom or about pending cases by public lawyers involved in such litigation must comply with established rules, canons, and professional codes if censure or discipline is to be avoided.
Speech expressed through the "chain of command" or internal professional channels merits as much protection as public utterances, and direct initiation of media coverage fares no better than other avenues of expression, notwithstanding "free press" values.
Speech critical of established agency or government unit policy on the part of key lieutenants to office heads or managerial officials in policy-sensitive positions can be curbed or disciplined more readily than that of government employees in other positions.
When government employer responses to speech infringement assert other, albeit related, misconduct or misbehavior as the true reason for disciplinary imposition, appellate courts tend to require close examination of these assertions as part of, and perhaps the desideratum in, resolution of employee challenges.
Legislatively targeted types of speech-related misconduct by public lawyers and employees (e.g., banned political activity, acceptance of honoraria) tend to enjoy considerable deference when challenged, but at least minimal relationship to public duties or potential for harm needs to be demonstrated.
Daniel L. Skoler is the former Associate Commissioner for Hearings and Appeals of the Social Security Administration. He currently serves as Chair-Elect of the Government & Public Sector Lawyers Division. Steven Kiviat is an Attorney Advisor with the Social Security Administration Office of Hearings and Appeals. The views expressed in this article are those of the authors alone and are not intended to represent an official expression of the Social Security Administration. No official governmental support or endorsement is intended nor should be inferred.
This article is an abridged and edited version of one that originally appeared in The Public Lawyer, Winter 1995 (3:1).