PRESS RELEASE: Defense of Freedom Institute Urges Supreme Court to Protect Public Employees’ Free Speech Rights

WASHINGTON—The Defense of Freedom Institute for Policy Studies (DFI), together with the Manhattan Institute, filed an amicus brief this week urging the U.S. Supreme Court to review Hedgepeth v. Britton, a case that raises critical questions about the First Amendment rights of public employees who speak on matters of public concern outside of work.

The case centers on a public school teacher who was fired after posting on her private social media account, while off duty on summer vacation, about issues that some in her community found offensive. The Seventh Circuit upheld the dismissal, concluding that complaints from members of the community created sufficient “disruption” to justify the termination.

In the brief, DFI and the Manhattan Institute warn that allowing public employers to punish employees based on outside complaints about lawful speech threatens core First Amendment protections.

As the brief explains:

“The First Amendment would be almost meaningless if speech could be banned because it engendered controversy, offense, anger, or even vituperative counter-speech.”

The amici argue that the Seventh Circuit’s decision effectively creates a roadmap for coordinated campaigns to silence disfavored viewpoints. In the modern social media environment, where speech can be rapidly amplified and activists can easily mobilize complaints, public employees could face discipline whenever controversial opinions generate backlash. Under that approach, organized campaigns can effectively manufacture the “disruption” needed to justify punishing speech the government disfavors.

The brief also urges the Court to clarify how the longstanding Pickering-Garcetti framework, which governs when public employees can be disciplined for speech made as private citizens, should apply in an era when nearly every citizen communicates publicly online.

“Public employees do not surrender their First Amendment rights simply because they work for the government,” said Don Daugherty, Senior Litigation Counsel at DFI. “If public employees can be fired whenever activists organize enough complaints about lawful speech made on a private social media account while off the clock, then the First Amendment becomes subject to the loudest mob rather than the rule of law.”

DFI argues that the Supreme Court should grant review to clarify that disagreement with a speaker’s viewpoint, or even public backlash generated by that disagreement, cannot be used to justify the government punishing constitutionally protected speech.

Granting certiorari in Hedgepeth v. Britton would give the Court an opportunity to reaffirm that the First Amendment protects citizens, including public employees, when they participate in debate on matters of public importance.

To read the brief, click here.