Lessons from EpiRen: do public employees have free speech rights?

For this, my first post on this long-planned blog, I am hoping to use current events in the skeptical world to show one way in which I hope to be of some help to skeptics: by giving a brief, plain-English explanation of the law surrounding some issue.  Be warned, though, that by making a “plain-English explanation,” I am purposely leaving out some of the nuance and gray area of the law.

Here, my focus is on a post on Liz Ditz’s blog, I speak of Dreams.  The post describes how René Najera, an epidemiologist for a state department of public health who goes by the pen name “EpiRen,” was ordered by his supervisors to stop his blogging and tweeting about matters relating to public health.  The orders came after a man describing himself as a “pharmaceuticals entrepreneur” contacted the supervisors to complain about Najera’s comments, which the “entrepreneur” claimed defamed him and his business.  Najera, not wanting to risk his job, agreed, and will no longer be blogging or tweeting about public health.

The comments to the post included a question about the legality of the supervisors’ orders:

This seems to me like a violation of free speech. Just as it is illegal to fire someone because of race or religion, shouldn’t it be illegal to fire someone for views expressed outside the workplace?

and a biased, ignorant response to that question:

[A]s a labor organizer, I can tell you for a fact that unless [Epi]Ren is a member of a union, he can be fired at any time for any or no reason at all, as long as it doesn’t come under the EEOC protected things like race, gender or religion.

So unless Ren can prove that protecting the public’s health by educating online is his religion, he can be fired for his online communication. Unless you have it protected in a union contract, you have no free speech if your employer doesn’t like it.

The bias of this “labor organizer” results in a common overstatement of the benefits and protections of unionization.  There are many other sources of protections for workers, and especially government workers, in both federal and state laws, ranging from state and federal constitutions on down to agency policies.  There is also the private employment contract that affects any employment relationship, whether that contract is formed by collective or individual bargaining.  (I’ll admit, though, that most employees have far less bargaining power when acting individually than when acting collectively.)

But I digress (mostly due to my own bias against unions).

Public employees have the free speech rights of other citizens

The U.S. Supreme Court, in the May 2006 decision in Garcetti v. Cabellos, had occasion to explain the free-speech rights that public employees possess.  In that case, Cabellos, a deputy district attorney, was disciplined for his complaints about his supervisors’ actions that he wrote in an internal office memorandum.  The Supreme Court found that Cagellos’s free-speech rights were not infringed when he was disciplined, because the memo was written in his capacity as deputy district attorney, and a government agency is entitled to review the work of an employee even if that work involves speech.

The Court was careful to point out, however, that when a public employee speaks  on a matter of public concern as a citizen, and not as a government official, the employee is entitled to most of the free-speech rights of any citizen.  Yes, I said “most” and not “all.”  The Court said that a government agency has some discretion to restrict the non-work-related speech of its employees if that speech affects the agencies operations.

From the facts that I have (which isn’t the same as the facts a judge or jury would have after a trial), Najera was not speaking in his capacity as a public official.  Therefore, the rights of his employers to censor his speech are very limited.  I have not heard anything that indicates that his blogs and tweets have affected his employer’s operations.  Therefore, I think, based on my very limited knowledge of the facts, that Najera would have the protection of the law, namely the First Amendment of the U.S. Constitution, for his speech.  He probably can’t be fired for his blogging and tweeting.  But, like any good skeptic, I’m open to more information that might change my mind.

Note that these protections are less available to employees of private companies (or individuals) than government employees.  An employee in the private sector can, and often does, give up a right to speech as part of the employment contract.  Wal-Mart would have the right to fire me for saying that it’s a dangerous, conspiratorial organization out for world domination, more than the Environmental Protection Agency would.  Perhaps this is what the union organizer was referring to, but he or she missed the very important fact that Najera was an employee of a public, and not private, employer.

The importance of government-employee speech

In Garcetti, the Supreme Court noted that giving public employees free-speech rights protects not only the employees, but also society.  Government employees, after all, are in the best position to report on the activities of the government agencies for which they work.  It is in society’s best interest to give government employees the ability to inform the public about the activities of, and problems in, a government agency, the Court indicated.

The evils of suppressing Najera’s speech

I was not familiar with Najera/EpiRen.  But several people whose opinions I trust have expressed how wonderful he is.  Therefore, I accept that he is wonderful.  (Fellow skeptics, name that logical fallacy.)  But that is completely irrelevant to my opinions on this situation.

Najera’s employers (no, I’m not going to comment on the “pharmaceuticals entrepreneur,” and not because I’m afraid that he’ll sue me if I say something nasty about him) have acted rashly in stifling Najera’s outside activities, even if they relate directly to his job.  No, make that especially because they relate directly to his job.

As the Supreme Court expects, I want public employees to speak out about subjects related to their jobs.  Who better to tell me what’s going on in a government agency than someone who works there every day?  Who better to tell me about public health than someone who works in that field?

I think Najera’s employers might make things worse for themselves for what they have done.  I suspect that most people who find out about this would trust Najera’s agency less now than they did before.  They have all the appearances of hiding something, and of being afraid of their employees talking without an official sanction of everything uttered.

A personal note

Some of you may have noted that my real name is not on this blog.  That’s because I work for a public agency, and I do not want my agency connected with anything I write.  I am, of course, speaking entirely on my own, and my agency has nothing to do with this.

If, someday, somebody discovers who I am and complains to my employers, and if they order me to stop writing public comments on the law, I most likely will.  I completely understand Najera’s decision to stop his outside activities in favor of his job.  I only wish his employers would encourage, rather than prohibit, his outside activities in the interest of public health.