Does the Connecticut Constitution provide an independent and greater right of free speech for public (and even private) employees than the First Amendment of the U.S. Constitition?
That was a question left unanswered in last year’s precedent-setting Schumann decision by the Connecticut Supreme Court that I handled, where the court stated: “We decline to reach the state constitutional issue raised in the plaintiff’s alternative ground for affirmance….”
Since that time, a federal district court has weighed in on the matter and concluded that it did.
And now we have a lengthy Superior Court decision from earlier this summer (Matthews v. Department of Public Safety) that has concluded that the Connecticut Constitution does, in fact, provide a greater right.
How? Unfortunately for a blog post, it contains the type of in-depth analysis that is better suited to a law review article than a quick recap.
But to simplify, the Superior Court concluded that the U.S. Supreme Court’s decision in Garcetti v. Ceballos (which held that speech that relates to an employee’s official job duties is unprotected) does not apply.
It held that because Connecticut’s Constitution contained language “written from the point of view of the indivdiual citizen”, “it reads as an affirmative grant of free speech to the individual, rather than a limitation on the government’s right to restrict speech” as the First Amendment does.
Instead of applying Garcetti, the court relies on an older series of U.S. Supreme Court cases (the Pickering and Connick tests, for those Constitutional buffs) as the proper way to analyze speech in the workplace claims under Conn. Gen. Stat. Sec. 31-51q. It concluded:
The better approach, in this court’s view, is to adhere to the test articulated in Pickering and Connick, as ap-plied before Garcetti, so that the inquiry into whether the speech was made “as an employee” or “as a citizen” is subordinate to the larger issues of whether the speech addresses a matter of public concern and whether the employer has a legitimate interest in restricting the speech.
Under this approach, a court will first determine whether an employee’s speech is on a matter of public concern, then determine whether the interests of the employee in making the speech outweigh the interests of the employer in operating efficiently and effectively.
Involved in both inquiries is an examination of the speaker’s role, and the relationship between the speech and the speaker’s employment duties. In many cases, the more closely related the speech is to the speaker’s employment duties, the more likely it will either not be a matter of public concern or the employer will have a legitimate reason for restricting the speech.
But, this approach affords protection that Garcetti would not in a situation where the speaker is speaking pursuant to an employment duty but: (1) the speaker has a concurrent interest as a citizen in making the speech; (2) the speech addresses a matter of public concern; and (3) the employer has no legitimate reason for restricting the speech. Pickering and Connick provide a more flexible and fact-intensive analysis than does the Garcetti approach, especially when taking into consideration how woodenly Garcetti has been construed.
This is hardly the end of the matter; I fully expect this issue to head back up to the Connecticut Supreme Court.
The decision has some other notable aspects on Conn. Gen. Stat. Sec. 31-51q claims as well, which I’ll tackle in an upcoming post.
For employers, the case should be one of great concern. If the logic in the case is followed, it would in essence gut the key holding in the Schumann case last year by allowing free speech claims to proceed under a lesser standard than claims based on the First Amendment. And once again, it would allow claims of free speech violations by employees to populate the courts.