University employees (including faculty and staff, as well as student employees in the context of their employment) do not give up their rights to freedom of expression and assembly as citizens by virtue of being public employees; however, the University does have the right to restrict speech within or that affects the workplace. Generally, there is a two-part test for determining whether an employee's private speech is protected. First, it must relate to a matter of public concern, including political and social issues. This may included matters relating to the University, but not "private" University matters (such as in personnel disputes) that are not matters of public concern.
Second, the University may restrict speech to the extent that it has the potential to disrupt the operation of the University. This is essentially a "balancing test" to determine whether the employee's interest in free speech outweighs the University's interest in restricting speech for business reasons and will usually be evaluated on a case-by-case basis. An example might be a restriction on using language that is offensive to co-workers in the workplace, given the impact on the morale and functionality of the workplace environment. Another example, might be speech in the classroom by a faculty member that is wholly unrelated to the curriculum and negatively affects the learning environment.
Several leading cases have helped to shape the rules that apply to public employees. In the Pickering case from 1968, the U.S. Supreme Court held that a public employee's interest as a private citizen in making a comment on a matter of public concern can be balanced against the employer's interest "in promoting the efficiency of the public services it performs..." Picking v. Board of Education (U.S. 1968). In a more recent case, the Sixth Circuit Court of Appeals, in upholding the termination of a public employee, found that a senior administrator's statements in a public forum (for example in an editorial column or letter to the editor) "contradicted the very policies she was charged with creating, promoting and enforcing" and could not be excused as merely her own statements as a private citizen. And when an employee is speaking as part of their official duties, not as a private citizen, the employer can restrict or discipline the speech without balancing the individual's private interests. Garcetti v. Ceballos (U.S. 2006)
