Speech and association rights of public employees

Public employment carries constitutional protections that do not exist in private employment, and also constraints.

Political affiliation. Patronage dismissals are unconstitutional except for positions where party affiliation is an appropriate requirement for effective performance — policymaking and confidential positions. The test looks at the inherent duties of the position rather than the individual’s actual conduct.

Political activity restrictions. Statutes restrict partisan political activity by employees whose positions are federally funded in defined ways, and state and local rules restrict campaigning on duty, using public resources, and soliciting from subordinates.

Off-duty political activity is generally protected, and restrictions must be justified by an interest in efficient operation.

Endorsements. An employee may not use their official position or public resources to endorse candidates, and elected officials have broader latitude than appointed employees.

Ballot questions. Public bodies may inform but may not advocate using public resources, and the line between factual information and advocacy is enforced. Statutes in many states prohibit the use of public funds for campaign communications within a period before an election.

Union activity protected under state public employment relations statutes.