Michael Appleton / Mayoral Photography Office

Public employees can make unique and important contributions to public debate. Recognizing the value of their knowledge and experience, the Supreme Court has held that public employees have a First Amendment right to speak out on matters of public concern. However, public employers are allowed to place some restrictions on employee speech.

While this document is not a substitute for legal advice, it should help public employees understand the law and think strategically about when and how to speak out.

Am I a public employee?

You are a public employee if you work for any federal, state, or local government entity, agency or department. Teachers and other people who work for public school districts and public colleges and universities are public employees.

Am I allowed to make public comments about current events?

It depends. If you are making these comments as part of your official job duties, the First Amendment does not protect your statements, although there may be an exception for teachers and professors who express their views while teaching in the classroom.

Different rules apply if you are making these comments in your personal time as a private individual. Generally, your statements about topics that are of general interest to the public, including current events, are protected by the First Amendment. However, a public employer in New York may discipline you if your comments either disrupted its work or have the potential to disrupt its work, including by affecting public perception of your employer if you frequently interact with members of the public in your job. Courts consider all the facts and weigh your free speech rights against your employer’s interest in preventing disruption, so whether your employer violated the First Amendment will ultimately depend on your unique situation.

What are examples of speech that could be disruptive?

Offensive speech or expression that targets individuals or communities because of their racial, ethnic, or religious identity may be grounds for discipline. For example, courts have held that the NYPD was allowed to discipline off-duty police officers who wore blackface and parodied Black culture in a Labor Day parade. Similarly, a court held that the City University of New York was justified in demoting a department chair who made comments in a public speech that reflected stereotypes of Jewish people, including that they are “rich” and control Hollywood. The courts that decided these cases reasoned that this speech could undermine the trust between public employers and the communities they serve and disrupt their work as a result. 

Am I allowed to attend protests in my personal time?

Yes. The First Amendment protects your right to protest. In the past, public employers in New York – including schools – have not disciplined employees for attending an off-duty protest that did not violate any laws. However, statements you make or expression you engage in while protesting, such as a chant or a sign, could be grounds for discipline if your employer finds it to be disruptive. In some cases, teachers have been disciplined for engaging in protests during work hours that disrupted a school’s operations and police officers have faced penalties for participating in civil disobedience at an off-duty protest. You should check your employer’s policies and your contract to see what rules apply. For example, the New York City Public Schools Chancellor's Regulations require that employees report any arrest to both their supervisor and the Office of Personnel Investigations within 24 hours. 

Can I make comments on my personal social media accounts about current events?

It depends. The same rules that apply to all public comments also apply to statements on social media. Your employer may exercise oversight over any post you make as part of your official duties, whether you post to an official social media account or another account created to promote your employer. This means your employer can discipline you for making a statement that diverges from your employer's official policy.

If you post as a private individual about current events, your interest in exercising your right to free speech is weighed against your employer’s interest in preventing disruption. Courts in New York have typically believed employers’ claims that employee speech was likely to be disruptive. If your job involves public contact, negative press coverage could be enough to back up your employer’s claims.

You should exercise caution when posting to your social media accounts. Be careful when sharing about work and be mindful of how communities you serve could perceive your comments. You could consider making your account private or verifying your followers to limit who can see your posts but know that even private posts can be grounds for discipline if they become public. It is important to check your employer’s policies and your contract to see if there are rules about posting on social media.   

How can I protect myself if I am doxxed?

Doxxing is a form of cyberbullying that involves publishing an individual’s personal information online without their consent. NYCLU has a resource explaining how to protect yourself from being doxxed.

Can I wear apparel or display graphics or other objects at work that communicate my opinions about current events?

It depends. Public employers are allowed to limit what employees can wear while on duty as long as they are neutral about the content of any message on the clothing. For example, New York City Public Schools prohibits school personnel from wearing any apparel supporting candidates for political office regardless of party. A court held that this policy was permissible. If, however, your employer only restricts apparel promoting a particular political viewpoint, that would be cause for concern. Similarly, your employer may not prohibit wearing clothing associated with your ethnic or religious identity while permitting other ethnic or religious groups to wear traditional clothing.  You should check your employer’s policies and your contract to learn more. 

Do public school teachers have a First Amendment right to teach about current events?

It depends. The Supreme Court has not decided whether the First Amendment protects a teacher’s instructional and curricular decisions. However, the New York Commissioner of Education has stated that teachers have the right to deliver instruction as long as it has educational value, is relevant to the curriculum, and is suitable to the age and maturity of the students. As a result, teachers should have some protection in a discipline proceeding such as a Section 3020(a) hearing. Many districts have policies on teaching controversial topics and so it is important to review your Board of Education policies before teaching a lesson on current events.

If you are a public employee and have questions or think your rights have been violated, contact us. If you work for a school district or an institution of higher education, email us at schools@nyclu.org.