University of Iowa's Explanation for First Amendment Free Speech & Employee Obligations

University employees (including faculty and staff, as well as student employees in the context of their employment) do not give up their free speech rights 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 three-step test for determining whether an employee’s speech is protected. 

At step 1, the employer asks whether the speech was made pursuant to an employee’s official duties. If the answer to this question is “yes,” then the employer has an interest in that speech, and may regulate the speech. If the answer to this question is “no,” then the analysis proceeds to the second step. 

At step 2, the employer asks whether the speech was on a matter of public concern (e.g. wider political or social issues and not strictly a personal issue). If the answer is “no” (e.g., a personal workplace critique), then it is not protected speech. If the answer is “yes,” then the analysis moves to the third and final step. 

At step 3, there is a balancing of interests, weighing the interests of the employee in speaking against the employer’s interest in an efficient and effective workplace. If the employer’s interests outweigh the employee’s interests, then it is proper for the employer to act to protect its interests, including regulating the speech or disciplining the employee for disrupting those interests. Speech related to academic scholarship or classroom instruction might implicate additional interests such as academic freedom.