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How the First Amendment’s Free Speech Rights Protect Government Employee Whistleblowers

While the First Amendment to the U.S. Constitution lets private citizens speak freely without fear of recourse, does this also apply to government employees? Generally, federal and state employees are protected by the First and Fourteenth Amendments from employer retaliation when they exercise free speech. However, the laws surrounding free speech are complicated for federal employees, particularly when it comes to blowing the whistle on government fraud, waste, or corruption. Here's everything you need to know about whistleblower free speech protections.

The First Amendment and Free Speech

The First Amendment limits the government from infringing on free speech, and the Fourteenth Amendment prohibits local and state governments from stopping free speech. But how do these laws impact employees regarding employer retaliation for exercising free speech?

The First Amendment does not protect private-sector employees if they are fired based on what they say in or out of the workplace. On the other hand, public employees work for the government. Thus, government employees are protected from employer retaliation for exercising free speech rights.

However, courts have placed limits on these rights, limiting protections to those who speak out on matters of public concern. Thus, while the government may be able to fire someone for complaining about an unfit supervisor, they cannot fire someone for blowing the whistle on government wrongdoing.

Supreme Court Rulings About Free Speech and Government Employees

The U.S Supreme Court has ruled that government employees who engage in speech involving issues of public concern are protected under the First Amendment. The 1968 Pickering v. Board of Education ruling established that public employees do not give up their rights to speak on issues of public importance because they work for the government.

To be protected under the First Amendment, employees must prove their words are a matter of public concern that outweighs the government's concern about having an efficient workplace. The words of whistleblowers almost always satisfy this requirement. Public employees are often in the best position to uncover government wrongdoings. Thus, they are allowed to make those actions known to the community so that a public solution can be found.

Federal Laws that Protect Whistleblowers

First recognized in the Pickering v. Board of Education ruling, free speech protections for government employees have since evolved to include more laws and regulations. Today, many statutes protect employees who disclose government wrongdoing from workplace retaliation. Although whistleblowing also occurs in the private sector, government workers have more protection because of their First Amendment rights.

The Whistleblower Protection Act protects whistleblowers from general retaliation, while the False Claims Act allows employees to sue the entity or person responsible for the wrongdoing on behalf of the government and receive monetary compensation. Other regulations that protect those who blow the whistle include:

  • The Occupational Safety and Health Act

  • The Toxic Substance Act

  • The Sarbanes-Oxley Act

  • The Savings and Loans Whistleblower Statute

  • The Superfund Law

Some of these laws give government employees the right to bypass the chain of command and provide information that implies wrongdoing with members of Congress.

How Whistleblowers Can Make Protected Disclosures

The "protected disclosure" rule provides government whistleblowers with even more protection. A protected disclosure is anything reported that the whistleblower believes violates a law, rule, or regulation, constitutes a waste of funds, abuse of power, or is a danger to public safety or health.

To receive protection under this rule, the person disclosing the information must report it to a supervisor, someone in management, or a member of Congress. The disclosure must also meet the following two criteria:

  • The whistleblower must reasonably believe that fraud or another act of wrongdoing has occurred. Keep in mind that the definition of wrongdoing is slightly different depending on the worker's place of employment.

  • The report must be made to a person or entity authorized to receive the information. Most federal agencies have whistleblower programs to help workers determine the best person to share reports with.

If you are worried that disclosing wrongdoing may result in your dismissal, the First Amendment and federal laws may protect you. If the information you disclose is of public concern, you are likely covered by the U.S. Constitution and protection laws.

Work With a Qualified Legal Representative

If you have information about government wrongdoing, contact us at Piacentile, Stefanowski & Malherbe LLP, also known as Whistleblowers International. We evaluate your information confidentially and free of charge. We do not charge you anything unless and until we secure you a monetary reward, and even then, it is based on a percentage of your recovery. Thanks for reading!