§ 5.1.4 First Amendment Free Speech Rights. Public employers may have an overriding interest in regulating the conduct of their employees. This may be so even when doing so may restrict or burden the First Amendment rights of the employee. Thus, restrictions on First Amendment rights can be placed on public employees when they could not be placed on members of the public at large.6 In Barlow v. Blackburn7 the Arizona Court of Appeals found that there was compelling state interest in enforcing reasonable qualifications for peace officers which justified the infringement on the religious practices of a county deputy sheriff. The deputy sheriff openly admitted to practicing polygamy. The court found that an administrative hearing would be permitted to consider whether this deputy sheriff's certification as a law enforcement officer should be revoked due to his religious practice.8
When public employees make statements in their official duties, or about their official duties, they are not speaking as citizens for First Amendment purposes.9 In City of San Diego v. Roe, 10 a police officer videotaped himself stripping off a police uniform and masturbating. He then sold copies of the video and various police related items on EBay. The U.S. Supreme Court first recognized that a government employee does not relinquish all First Amendment rights to free speech by reason of employment. Review of a government employee's speech has two paths depending on whether it is related or unrelated to the employment. See Article 6.4, Defamation, infra.
[A] governmental employer may impose certain restraints on speech of its employees, restraints that would be...
