Government Employee's Free Speech Rights

Messer v. New Albany Police Department (Ind. Ct. App. March 15, 2012)

- Originally published March 15, 2012

This case addressed the interaction of the First Amendment right to free speech and the government’s authority to regulate the speech of its own employees. In this case, a New Albany police officer made a racially-charged comment to other police officers. The comment was subsequently leaked to the press. The police department suspended the officer for making the statement. The Court of Appeals held the suspension was permissible under the holding of Pickering v. Board of Education, 391 U.S. 563, the seminal Supreme Court case regarding government-employee speech.

In Messer, the Court held the suspension was constitutionally permissible because the police officer’s speech did not address a matter of public concern, and even if it did, the speech adversely affected the police department’s work. Judge Baker dissented, focusing on the fact that the police officer’s statement was not made in public. Judge Baker, therefore, believed the police department failed to establish that the police officer’s comments had the potential to disrupt the work of the police force and, therefore, the First Amendment protected the speech.

Judge Baker makes an interesting point in his dissent. Judge Baker’s dissent also raises a fundamental question of how much importance should be placed on the government employee speaker’s intentions as opposed to the effect of the speaker’s statements on the government employer. The government employer likely cares little whether an employee intentionally disseminates statement to the public or whether the statements are leaked. The effect on the government’s operations is likely the same in either situation. However, general first amendment principles have also considered the time, place, and manner of speech when determining whether it is afforded protection. The majority and dissenting opinions in this case exemplify the difficulty of drawing lines in these sort of cases.