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February 17, 2021

Midyear 2021: Decoding the First Amendment for government workers

Can people who work in the public sector exercise their First Amendment rights on the job? Can government workers be fired for attending a protest march – or a riot? Can they lose their job because of what they post on Facebook?

These and other questions concerning the First Amendment and public sector employees will be among the issues explored at the 2021 American Bar Association Virtual Midyear Meeting.

According to panelists of the upcoming “The First Amendment and Public Sector Employees,” there are no clear answers to the questions.

Laura Prather of Hanes and Boone in Austin, Texas, will examine relevant U.S. Supreme Court cases including Garcetti v. Ceballos, Lane v. Frank, Snyder v. Phelps, Pickering v. Board of Education and Connick v. Myers.

Public sector workers who speak out can be disciplined despite First Amendment protections, particularly when they “disrupt” the entity of employment. Panelist James Carlos McFall of Jackson Parker, LLP, in Dallas will discuss the basis for some recent cases.

McFall will also explore the ramifications for those who attended the rally and other events related to the insurrection at the Capitol on January 6 – or voiced their opinions about it on social media.

“Obviously, there’s no protections under the First Amendment for criminal acts, for sedition,” he says. “But for those who may have just voiced support for the riots themselves or have expressed concerns as to the legitimacy of the election -- I think raises some interesting, nuanced questions as to whether governmental employers would be permitted in those instances to terminate employees.”

Also on the panel is Professor Theodore Hirt of George Washington University Law School, who will discuss the use of social media privately and on the job. “There are a lot of pitfalls depending on who is speaking and what they are saying.”

Hirt cautions all public sector employees to mind their social media. As posts go viral and inevitably become digitally manipulated in some way – “Who knows what will be done with your words or the characterization of your words.”  And in the end, you could be held responsible.

“The First Amendment and Public Sector Employees” will be held on Friday, Feb. 19 from 2-3 p.m. CT. It is sponsored by the Government and Public Sector Lawyers Division and cosponsored by the Forum on Communications Law, Section of Civil Rights and Social Justice’s Free Speech and Free Press Committee and the ABA Young Lawyers Division.