Mississippi Federal Court: Fired Professor's Religious Speech Not Protected by First Amendment

Author: Michael C. Jacobson, XpertHR Legal Editor

April 3, 2014

Religious statements made by a public university professor to his students and colleagues were not protected by the First Amendment because they were made pursuant to his official duties as a professor, according to a Mississippi federal court. Payne v. University of Southern Mississippi, 2014 U.S. Dist. LEXIS 22052 (S.D. Miss. 2014).

This ruling is significant for public entities, federal, state and local government agencies and other public organizations that are partially or fully funded by government entities. In some situations, employees of public entities are entitled to First Amendment protection of their speech, but only when they speak in their capacity as citizens (as opposed to government employees). This protection enables them to bring First Amendment retaliation claims if an employer infringes on their rights to protected speech. These protections are not available to employees in the private sector, however.

In Payne, a tenured associate professor of criminal justice was fired in response to complaints from his students and colleagues that he made inappropriate religious statements in the workplace. Specifically, the professor regularly invoked Bible verses during classes or private discussions with students about course material, instructed students to pray about topics of discussion and allegedly looked down upon students and colleagues who did not share his religious beliefs.

In response to the complaints, the professor openly admitted to discussing religion with his students and colleagues. He was terminated by the university, and then brought a First Amendment Retaliation claim, alleging that he was permitted to engage in any religious speech he desired without reprisal. The court disagreed, finding that while the First Amendment does protect certain speech by public employees when they speak as citizens, it does not pertain to statements made by public employees in their official capacity. Thus, because the professor made these statements to his students and colleagues in his official capacity as professor, his speech was not protected from employer discipline.

This decision is in line with decisions of other federal courts throughout the country and reiterates a nationwide policy pertaining to unprotected speech by public officials in an employment at-will society. For example, public employees are not permitted to proselytize to their colleagues or other individuals when acting in their official roles as public employees. Their speech may be protected from employer discipline in other scenarios, but the protection is only invoked when they speak as a citizen, when they speak on a matter of public concern and when their interest in speaking outweighs the interest of the employing government agency in promoting efficiency and pursuing its goals. These requirements for protected speech by public employees pertain to speech in any format, including usage of social media platforms like Facebook or Twitter.

When it comes to employer discipline or termination, public employers should take steps to educate their employees as to the types of speech that are protected and the types that are not protected, regardless of their titles or tenure. Educating public employees about speech restrictions proactively can prevent disputes and public relations missteps, thereby saving public employers time and money.