The pandemic was tough on state and local governments, and many were relieved to know that a vaccine was in production. Unfortunately, the vaccine seems to have created differing opinions, sometimes loudly expressed. Some municipalities and special districts have employees with strong opinions about the benefit of being vaccinated. We all are entitled to our opinions, and if you work for a city or a public school district, you have freedom of speech protections that enable you to express those opinions.
As many know, that freedom is limited to speech about a public concern. The speech about a public concern is again limited when the speech interrupts the efficient operation of the public sector employer. So, when employees are arguing about the vaccine’s safety and side effects, what is the legal analysis?
Let us imagine we have two employees in a loud argument in a public area of a library. Abe is telling Will that he is crazy for getting the vaccine. Will is telling Abe he is crazy for not getting it. They are now calling each other names. We cannot hear exactly what they are saying because they are both wearing masks, but the patrons in the library are looking concerned.
The first question is – is this a matter of public concern? There are no current court cases on this, so it would be a fact pattern for a court or a jury to decide. Certainly, vaccines are a matter of public concern because they do impact the public at large. Abe and Will, however, have devolved into calling each other crazy along with other more colorful names. That is not likely to be a matter of public concern, and if that is the case, there is no protected speech, and the employer can immediately stop the behavior. The librarian in charge is already shushing them.
Let us change the facts slightly. Now Abe and Will are arguing over whether fast-tracking the vaccines was the right action to take. Again, it is heated. In this scenario, it is a matter of public concern because it involves a matter of interest to the public at large, so the question becomes whether it interferes with the efficient operations of the employer. If patrons are nearby and concerned due to the volume of the argument, it does interfere. A way to look at efficient operations is whether the speech is an issue due to its time, place, and manner. The manner – yelling – and the place – in a public area with patrons – interfere with the efficient operations, and so Will and Abe can be told to stop arguing in the public space.
A final change in the fact pattern has Abe and Will quietly discussing their differences of opinion in their cubicles on their break when Sally walks by and strains to overhear them because they seem very animated, and she is curious. Once she can overhear, she is upset because she really does not want to hear another word spoken about vaccines. As you can imagine, Sally’s complaint to her supervisor will likely not be one that can cause any adverse response to Abe and Will because their quiet conversation is not interfering with the efficient operations of the library.
If you have arguments over issues at your government agency, call us. We can help.