Summary of LEO First Amendment Rights

Police Officers have a right to join and participate in a Police Association. The Courts have been clear that public employees are “granted the right of free association by the First and Fourteenth Amendments of the United States Constitution; that right of association includes the right to form and join a labor union.” Atkins v. Charlotte, N.C. 296 F.Supp. 1068, (W.D. N.C. 1969); Hickory Fire Fighters Assoc., IAFF Local 2653 v. City of Hickory, N.C., 656 F.2d 917, 921 n. 3, (Holding that the Supreme Court had “affirmed the First Amendment right of unions to advocate the views of its members” in Smith v. Ark. State Highway Employees, Local 1315, 99 S. Ct. 1826 (U.S. Supreme Court 1979)); Henrico Proff. Firefighters Assoc., Local 1568 v. Board of Supervisors, 649 F.2d 237, 244 (4th Cir. 1981) (“Smith itself affirmed the right of labor associations ‘to engage in advocacy on behalf of their members.’”); Lilenthal v. City of Suffolk, 275 F.Supp. 2d 684 (E.D. Va. 2003)(President of firefighters union had First Amendment right to “associate with other persons in order to express his views on matters of public concern.”); Boddie v. City of Columbus, Miss., 989 F.2d 745 (5th Cir. 1993) (“in 1987 it was clear that the First Amendment protects an employee’s right to associate with a union”); AFSCME v. Woodward, 406 F.2d 137, 139 (8th Cir. 1969) (“Union membership is protected by the right of association under the First and Fourteenth Amendments.”) Local 2106, IAFF, v. City of Rock Hill, S.C., 660 F.2d 97 (4th Cir. 1981).

The Government may not retaliate against officers for joining a Police Association. The Courts, are also clear that a government employer cannot retaliate against an employee for joining a union, or for otherwise exercising his right to free speech. Cromer, at 1331 (4th Cir.)( Sheriff “would violate Cromer's constitutional rights if he fired him for participating in the Association.”); Edwards, at 252 (4th Cir.)(Police Chief cannot discipline police officer based on protected First Amendment views or association.); Smith, at 1828 (U.S. Supreme Court) (“the government is prohibited from infringing upon [the right of association] . . . by imposing sanctions for the expression of particular views it opposes.”)

The Government may not coerce officers into refraining from joining a Police Association. Once again, this principle is well established by the case law. Hickory, at 925 (4th Cir.) (Fire Chief may not deter or chill the public employees in the exercise of First Amendment freedoms); Edwards, at 252(4th Cir.)(Police Chief cannot threaten termination of police officer based on protected First Amendment views or association.); Lilenthal, at 694 (E.D. Va.)(President of firefighters union had the First Amendment right to freedom of association “without being threatened with termination.”)

The Government may not restrict the right of a Police Association, and its members, to speak on working conditions and other matters. One Court directly addressed this point: “the working conditions of the firefighters are a matter of public concern which the Association’s representatives are especially well qualified to address,” and attempts to limit the Association’s opportunity to raise such concerns may violate the First Amendment. Id. at 921-922; Smith, at 1828 (U.S. Supreme Court) (“the government is prohibited from infringing upon [the right of association] by a general prohibition against certain forms of advocacy.”); Lilenthal, at 691 (E.D. Va.)( “the court finds that fire department issues such as safety, equipment, staffing, and response time are subjects in which ‘the public or the community is likely to be truly concerned’ and ‘interested.’”)

The Government may not restrict the placement of Police Association literature. The government may not limit the distribution of literature, even on Police Department property, based on the content of the literature. Hickory, at 926 (Fire department could violate First Amendment right of Fire Association if it removed Fire Association charter from public billboard in the fire department.) Any Police Department policy that explicitly forbids the distribution of pro union literature on Police Department property is a clear violation of the Police Association’s right to free speech.

The Government may not interfere with a Police Association’s right to retain legal representatives for its members. The U.S. Supreme Court “has long held that the First Amendment protects the right of unions to secure legal representation for their members.” Smith, (U.S. Supreme Court)(dissent citing Mine Workers v. Illinois State Bar Assn., 88 S.Ct. 353, 355-356,(1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 84 S.Ct. 1113, 1117, (1964).)