Government Employee's Free Speech Rights

Messer v. New Albany Police Department (Ind. Ct. App. March 15, 2012)

- Originally published March 15, 2012

This case addressed the interaction of the First Amendment right to free speech and the government’s authority to regulate the speech of its own employees. In this case, a New Albany police officer made a racially-charged comment to other police officers. The comment was subsequently leaked to the press. The police department suspended the officer for making the statement. The Court of Appeals held the suspension was permissible under the holding of Pickering v. Board of Education, 391 U.S. 563, the seminal Supreme Court case regarding government-employee speech.

In Messer, the Court held the suspension was constitutionally permissible because the police officer’s speech did not address a matter of public concern, and even if it did, the speech adversely affected the police department’s work. Judge Baker dissented, focusing on the fact that the police officer’s statement was not made in public. Judge Baker, therefore, believed the police department failed to establish that the police officer’s comments had the potential to disrupt the work of the police force and, therefore, the First Amendment protected the speech.

Judge Baker makes an interesting point in his dissent. Judge Baker’s dissent also raises a fundamental question of how much importance should be placed on the government employee speaker’s intentions as opposed to the effect of the speaker’s statements on the government employer. The government employer likely cares little whether an employee intentionally disseminates statement to the public or whether the statements are leaked. The effect on the government’s operations is likely the same in either situation. However, general first amendment principles have also considered the time, place, and manner of speech when determining whether it is afforded protection. The majority and dissenting opinions in this case exemplify the difficulty of drawing lines in these sort of cases.

Barrett McNagny LLP

Legal Disclaimer

The information contained in the Barrett McNagny LLP website is for informational purposes only and should not be considered legal advice on any subject matter. Furthermore, the information contained on our website may not reflect the most current legal developments. You should not act upon this information without consulting legal counsel.

Your transmission and receipt of information on the Barrett McNagny LLP website, or sending an e-mail to one of our attorneys or staff, will not create an attorney-client relationship between you and Barrett McNagny LLP. If you need legal advice and want to establish an attorney-client relationship with Barrett McNagny LLP, please contact one of our attorneys by telephone, email, or other means of communication, and allow the attorney to confirm that the firm does not represent other persons or entities involved in the matter and that the firm is willing to accept representation. Until such confirmation is provided by one of our attorneys, you should not transmit information to us that you consider confidential. If you do provide information to us, and no attorney-client relationship is established, the information will not be considered confidential or privileged, and our receipt of such information will not preclude us from representing another client in a matter adverse to you.

Any links to other websites are not intended to be referrals or endorsements of those sites.

Privacy Policy

Terms of Use

ADA Compliance

Transparency Cover Rule: Machine-Readable Files

Contact Us
My name is
and I am a(n)
seeking legal counsel in the area of 
me at
as soon as you can.

Thank you for contacting us!

A representative will be in touch with you shortly.

An attorney-client relationship will NOT be formed merely by sending an email to Barrett McNagny, LLP or to any of its attorneys. Please do not send any information specific to your legal needs until you obtain approval from a Barrett McNagny, LLP attorney, as the content of such email will not be considered confidential or privileged. By sending us an email, you confirm your understanding of this notification. If you agree, you may use the e-mail links on this page to contact an attorney.