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Retaliation and Whistleblower

First Amendment Claims

The First Amendment to the U.S. Constitution guarantees the right to exercise free speech. In the employment context, the First Amendment prohibits the federal and state governments from retaliating against public employees for exercising their right to free speech.

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First Amendment Retaliation Details

It is illegal for public employers to retaliate against their employees for exercising the right to free speech. Not everything that a public employee says constitutes protected speech. Rather, a public employee’s speech is protected when the employee is speaking as a citizen, commenting on matters of public concern. If the public employee’s speech satisfies that criteria, then the speech is protected, and the government employer cannot terminate or otherwise discipline the employee for speaking unless there is adequate justification for doing so.

If the public employee’s protected speech was a motivating factor in the government’s decision to terminate or discipline the employee, and the government did not have an adequate justification for its actions, then the employee may bring a First Amendment retaliation claim against his or her government employer.

Examples of First Amendment Retaliation

The following are some examples of practices which may constitute illegal First Amendment retaliation:

  • Your government employer fired or demoted you because you criticized a government policy or official.
  • Your government employer fired or demoted you because of a political statement you made publically, or via social media or blog post.
  • Your government employer fired or demoted you because of your participation in a protest or political demonstration.

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