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The First Amendment & Employer Regulation of Employee Speech

TNG represents many public universities as well as public school districts. One area of law that seems to vex administrators is understanding the regulation of employee speech. The nuances of what is considered public speech versus private speech, as well as the concept of “touching on a matter of public concern” can be complex to understand and even more complex for administrators to apply.

To aid our clients, TNG designed the handy grid below as a guide to the First Amendment and how it impacts the ability of education-sector employers to regulate or discipline employees for the content of their speech. While the question of whether speech is made in a public or private capacity cannot be definitively addressed by the grid, administrators will want to consult legal counsel on the issues of context and circumstances that can aid in a determination of whether employee speech is made within an employment role, or in a private capacity.

To view more of TNG’s resources, click here.


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