Public Employees Have the Right to Talk Politics without Risking their Jobs

Jeanne Hedgepeth worked for 20 years as a public school teacher at Palatine High School in Illinois. But in 2020, she was fired for comments she made on her personal Facebook page. Hedgepeth had always taken care to separate her social media presence from her job. She did not accept friend requests from current students, identify herself as a PHS employee, or make her posts public. Nevertheless, the school district claimed that her Facebook comments had damaged the school district’s reputation and her effectiveness as a teacher.

In 2021, Hedgepeth filed suit in federal court, alleging that her firing had violated her First Amendment rights. The Court of Appeals for the Seventh Circuit ruled in favor of the school district, applying a version of the public employee speech doctrine from the Supreme Court case Pickering v. Board of Education (1968). The Seventh Circuit found that the school was justified in firing Hedgepeth and had not violated her constitutional rights. Hedgepeth then petitioned the Supreme Court for review, and Cato filed an amicus brief in support of her petition. This week, the Supreme Court will consider whether to take her case.

In our brief, we recount how the Seventh Circuit’s decision exemplifies a trend among lower courts that have incorrectly applied the First Amendment to cases involving controversial speech by public employees. Public employees do not lose their constitutional rights when they accept a job. The Supreme Court has rejected the view once expressed by Oliver Wendell Holmes that public employees have the right to “talk politics” but do not have the right to keep their jobs if they do so. Yet lower courts often grant them only minimal protection from retaliation for off-duty speech unrelated to their jobs. Properly applied, the First Amendment should protect public-employee expression when it’s made off duty and on a private social media page.

Furthermore, the Seventh Circuit’s decision impermissibly engages in viewpoint discrimination. When evaluating whether public school teachers can be punished for their speech, the Pickering doctrine requires courts to examine the disruptive impact that the particular speech had on a teacher’s classroom. But Hedgepeth’s speech was private and made during summer break, nowhere near her classroom. Also, strong evidence suggests that the school fired Hedgepeth not because of disruption but because school leadership disagreed with her views. The First Amendment prohibits the government from selectively silencing disfavored views, and the Seventh Circuit erred in allowing the school to invoke outside-the-school-community complainers as a pretext to establish “workplace disruption.”

Roughly 23 million Americans are public employees. If allowed to stand, the Seventh Circuit’s reasoning would prevent their full, uncensored civic participation by denying them robust speech rights. That is particularly dangerous in an era when the levers of government power are being increasingly used to silence and intimidate speakers. This case gives the Supreme Court the opportunity to clarify the protection the First Amendment offers public employees, and the Supreme Court should take it.