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1st Amendment protects government employees

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in Employment Law,Human Resources

Public employees have the right to free speech, and they’re free to support any political candidate they want—even when they oppose their bosses who are running for office.

The winner can’t punish employees who supported the other guy if the employees aren’t in policy-making positions. And even when they are, the winner has to prove that it would disrupt public services to retain someone who supported the losing candidate.

Recent case: Charles and Mary were sheriff’s deputies who served, respectively, as jail administrator and assistant jail administrator of the Bell County jail.

Charles was responsible for overseeing the jail’s personnel and operations. He could appoint courtroom bailiffs, transfer inmates to other facilities and interface with external vendors.

He oversaw a staff of 200 and helped craft the jail budget.

Mary oversaw security, scheduling and jail standards, and handled inmate grievances. She also managed food and supply purchasing. She neither signed contracts nor participated in the budget-making process.

Both Charles and Mary supported another candidate for sheriff when their boss ran. Their candidate lost and the winner informed them both that they either had to accept demotions or resign; he said he was “heartbroken” that they had supported his opponent.

Both quit and sued, alleging they had been fired for exercising their First Amendment rights.

A lower court tossed out their claims, but the 5th Circuit Court of Appeals reinstated both lawsuits. It ruled that even though Charles was a policymaker by virtue of his extensive responsibilities, his support for another candidate was not disruptive to the office’s operations or service to the public.

It also ruled that someone in a subordinate role, like Mary, could never be fired for political activities such as supporting another candidate. (Grogan, et al., v. Lange, et al., No. 14-50879, 5th Cir., 2015)

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