Employee Rights

Political Speech

This article is an excerpt from The Library’s Legal Answer Book, chapter 8: Issues in Library Employment, by Mary Minow and Tomas Lipinski; © 2003 by the American Library Association. The Library’s Legal Answer Book is available from the ALA Store at www.alastore.ala.org.

In light of this election year, this article may help answer some of your questions about participation in the electoral process as an employee. This article applies primarily to public employees—library staff employed by federal, state, and local government libraries. Work in the public sector differs markedly from work in the private sector. On the one hand, public employees are subject to legislative restraints regarding their political activities. On the other hand, public employees enjoy stronger federal and state constitutional guarantees of freedom of speech and association than private employees. Nevertheless, the law surrounding a public employee’s First Amendment free speech rights is complicated and unpredictable. The key inquiry is whether the library employee’s speech is characterized as a matter of “public concern,” and if so, the employee’s rights are balanced against the employers’ interests, with varying results.

Library employees in private settings may be regulated by their institutions’ policies, including “gag orders” and the like, without recourse to the First Amendment in the U.S. Constitution. This is because the First Amendment limits government restrictions on speech.

Restrictions on library employee speech may be made at the federal, state, local, and departmental levels. At each of these levels, speech restrictions will be judged by the courts on the basis of whether or not the restrictions encompass speech on matters of “public concern.”

The courts have found a significant degree of protected public employee speech, at least so far as the speech touches on matters of “public concern.” The landmark Supreme Court case on this issue, Pickering v. Board of Education, strongly endorsed the value of free speech for a teacher who was fired for writing a letter to a newspaper critical of the local school board. The letter was found to be of “public concern,” i.e., important to public discourse at large. The court found this speech to be under the umbrella of the First Amendment, and thus the letter could not be the basis for discharge—unless it was found to cause a substantial interference with the ability of the teacher to continue to do his job.1 “Public concern” inquiries by the courts look like this:

  1. Was the speech protected?

  2. Was the protected speech a “substantial or motivating factor” behind the adverse employment action?2

  3. If the employee can establish the first two elements, can the employer prove that it would have made the same decision to terminate even if the employee had not engaged in the protected conduct?3

In addition, the courts will apply a balancing test that sometimes allows employers to restrict speech even on matters of public concern, if it might disrupt the workplace.

What is protected speech?

To be considered a matter of “public concern,” a library employee’s speech must relate to a matter of “political, social, or other concern to the community.”4 Speech that rises to the legal standard of “public concern” often involves the reporting of corruption or wrongdoing to higher authorities.5 Comments made in a personal conversation may be “too remote from the political rally” to activate the guarantees of the First Amendment.6 The audience is also an important factor. An audience of few, “rather than the press,” weighs against a claim of protected speech.7

Political Speech

review of state laws by Rafael Gely and Timothy D. Chandler shows that thirty-five states have some form of explicit restriction on state employees’ participation in politics.8 Four are more restrictive than the federal Hatch Act (see below): Louisiana, New Mexico, Ohio, and West Virginia. Louisiana and Ohio broadly prohibit covered employees from taking part in the management of the affairs of a political party or any political campaign. New Mexico and West Virginia have adopted a somewhat less restrictive approach by allowing political participation in general, but prohibiting covered employees from becoming members or officers of political parties.

Thirty-one states have statutes that are less restrictive than the Hatch Act:

  • 14 states prohibit using an employee’s official authority to interfere with or affect political processes or outcomes

  • 23 states prohibit public employees from providing or soliciting financial or worker contributions to any political organization or candidate

  • 13 states prohibit public employees from holding elected offices

  • 22 states prohibit public employees from engaging in political activities while on duty, in uniform, or on state property.9

What political speech rights do public library employees have?

Political speech, by definition, is likely to touch on matters of public concern. Nevertheless, some political speech, particularly partisan campaign activity, can interfere with the smooth administration of public employment. The courts are all over the map on political speech by public employees.10 It can make a big difference whether the political speech at issue is running for office, supporting political candidates or legislative measures, or merely expressing political opinions.

Generally, courts have upheld public employee speech restrictions when they are seen to serve legitimate local or state interests in maintaining discipline and providing for the effectiveness of employees. An overriding concern of the courts is whether the government can show that legitimate government interests are at stake in restricting the speech. Evidence of the government’s actual reasons for imposing restrictions is not required.

Restrictions on high-level participation in partisan politics, such as running for office or using one’s public positions to influence campaigns, are more likely to be upheld as “reasonable restrictions.” Restrictions that forbid mere discussion of politics are less likely to be upheld.11

How does a library employee know precisely what restrictions are in place?

Although an employee is presumed to know the laws and policies that guide him or her in the workplace, if a law or policy doesn’t clearly enunciate what is forbidden, it may be challenged as “void for vagueness.” However, if adequate warning is given of what activities are proscribed, along with explicit standards, restrictions may be upheld.

Can library staff that work for the government participate in a political campaign?

It depends. The Hatch Act restricts the political activity of executive branch employees of the federal government, the District of Columbia (D.C.) government, and certain state and local agencies. In 1993, Congress passed legislation that substantially amended the Hatch Act, allowing most federal and D.C. employees to engage in may types of political activity, including active participation in political campaigns. However, some federal agencies and categories of employees continue to be prohibited from engaging in partisan political activity.12 The Hatch Act, although federal, covers certain state and local agencies that have programs financed in whole or in part by federal loans or grants. The 1993 amendments did not affect the provisions restricting state and local employees.

May library staff run for public office?

It depends on the jurisdiction.13 Courts have held that it is within legislative discretion to restrict political campaigning as a measure to bring about an effective civil service system, relieved of political pressure. Such provisions are common at state, local, and even departmental levels and are considered to have the purpose of promoting efficiency and integrity in the discharge of official duties.14

May staff put political campaign literature on their desk in the office if they do not actively circulate it?

That may vary by the circumstance and how the state or local law is written.15

May a library employee take a position on a ballot measure?

While library employees may take positions on their own time, it is common to find a restriction on the use of public resources for such purposes.

Can library staff inform patrons regarding pending library buts or urge patrons to contact their local officials to support library funding activities?

This kind of activity involves public resources in the form of paid time. Many libraries put together fact sheets that show budget-cut impacts or potential funding initiative impacts; however, library staffs are usually advised to refrain from actual advocacy while using public resources. Friends of the Library or other support groups, however, may distribute literature that takes a position, so long as all other positions are given the same distribution opportunities.

What’s the difference between “providing information” and “advocacy”?

Some useful guidance may be found in a document issued by the secretary of state of Oregon explaining the Oregon statute that restricts public employee’s political activities.16 In summary, it identifies the factors necessary to determine if a document is advocacy or merely informational:

  • Timing—is the material only published at election time?

  • Balance—are both negative and positive facts mentioned?

  • Overall impression—is the reader informed or persuaded?

  • Tone of publication – is it dispassionate or enthusiastic?

  • Use of the word “will”—in describing the passage of a measure, the word “would” is a better alternative since it suggests that voters have a choice.

  • Use of the word “need”—in describing the purpose of a measure, the word “need” is often emotionally charged

  • Headings’ or lead lines’ “tone”—should not favor or oppose a measure

  • Quotes about the measure—should not be included

  • Graphics, checkmarks, and photographs—photos can be emotional; checkmarks often indicate what someone should do

  • Use of phrases similar to campaign slogans—should not be used

  • Contact information for political committees—should not be used

  • Information about voter turnout requirements—may be used if neutrally stated, e.g., don’t use a phrase like “double majority.”

  • Finally, the document must not explicitly urge a yes or no vote. It should not have phrases such as “Why I should vote for Measure 99.”

Can an employee use a union leave of absence for partisan political activity?

Probably.17

Could library staff go to jail for violating laws that restrict public employee’s political activities?

Not likely.18

This article does not constitute legal advice. For specific answers to these questions for your library, check with your administrators and human resources, legal, and union management.

References

  1. Pickering v. Board of Education, 391 U.S.563 (1968).

  2. Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).

  3. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977).

  4. Connick v. Myers, 461 U.S. 138, 146 (1983).

  5. Wallace v. Texas Tech University, 80 F.3d 1042, 1051 (5 th Cir. 1996).

  6. Swank v. Smart, 898 F.2d 1247, 1251 (7 th Cir. 1990).

  7. Johnson v. Multnomah County, 48 F.3d 420, 425 (9 th Cir. 1995).

  8. Rafael Gely and Timothy D. Chandler, Public Employees’ Political Activities: Good Government or Partisan Politics? 37 Houston Law Review 775, 791 (2000) atwww.law.uh.edu/Journals/hlr/downloads/37-3%20pdf%20files/HLR37P775.pdf

  9. Public Service Research Foundation, Charts on Little Hatch Acts, at www.psrf.org/hatch.html

  10. Keith G. Munro, Constitutional Protection: Freedom of Speech and Public Employees, 8 Nevada Lawyer 10 (January 2000).

  11. See De Stafano v. Wilson, 96 N.J. Super. 592 (1967) (a state statute forbidding political activity by public employees, and a police department regulation forbidding police officers from discussing politics have been held to violate the First Amendment).

  12. U.S. Office of Special Counsel, Federal Hatch Act, at www.osc.gov/hatch_a.html (visited July 5, 2001).

  13. The Public Service Research Foundation has tracked states’ rules on civil service employees running for office and has found that several states place no restrictions on it. For specific restrictions placed on civil service employees by other states, see Public Research Foundation,States’ Rules on Civil Service Employees Running for Office, at www.psrf.org/gur/chart1.html . Local restrictions may apply.

  14. Ricks v. Department of State Civil Service, 8 So. 2d 49 (La. 1942). State or local statutes that require public employees to resign upon filing for public office have been upheld as servicing the public interest. See Johnson v. State Civil Service Dept., 157 N.W.2d 747 (Minn. 1968).

  15. Gibbs v. Orlandi, 189 N.E.2d 233 (Ill. 1963), held that a state civil service employee had not violated the Illinois Political Activity Act by distributing campaign literature on behalf of a candidate when he merely permitted political literature to remain on his desk, stating that “distributing” political literature would commonly mean more than mere acquiescence in the placement of literature in the office. For example, in Illinois a case held that the state prohibition on the “distribution of campaign literature” meant more than mere acquiescence in the placement of literature in the office.

  16. Bill Bradbury, Secretary of State, Oregon, Restrictions on Political Campaigning by Public Employees, ORS 260-432 at www.sos.state.or.us/elections/Publications/restrictions.pdf

  17. Mich. Comp. Laws Ann. 15.401 et seq.; Michigan State AFL-CIO v. Michigan Civil Service Commission, 566 N.W.2d 258 (Mich. 1997). In one case, a state prohibited union leaves of absence for partisan political activity. The court found this prohibition violated both the state’s Political Freedom Act and the First Amendment.

  18. Swinney v. Untreiner, 272 So. 2d 805 (Fla. 1973). In one case, the state of Florida had a statute that made it a misdemeanor for public employees to willfully circulate petitions, work at polls, or distribute badges favoring or opposing a candidate. The court held that imposing a criminal penalty went beyond what was necessary to insure the public interest and infringed on the individual’s rights.