Free Expression

Table of Contents

Public Sector

Last Updated: 12-29-2020

In California, several authorities protect the right to freedom of expression. First and foremost, the First Amendment to the U.S. Constitution sets the minimum standard of protection. California lawmakers and government agencies cannot create any law, regulation or ordinance to diminish the protection afforded by the First Amendment. They may, however, expand the protections.

California's Constitution also protects free expression. Article 1, section 2, subdivision (a) states,

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

Some courts have determined that the free speech clause in California's Constitution is broader in some areas than the free speech clause in the First Amendment, such as in its application to private property. However, California's Supreme Court has emphasized that it is not broader in all of its applications, thus California courts may draw on both state and federal precedent to conduct constitutional free speech analyses.

In addition to the state and federal constitutional protections afforded to speech in California, the Legislature has enacted specific statutes to ensure that free expression protections are extended to groups or individuals in circumstances or locations where speech might not otherwise be completely protected. For instance, the Legislature has enacted California Government Code section 3203, which limits the restriction public agencies can place on the "political activities" of their employees. These types of protections are discussed in more detail below.

The purpose of this workbook is to discuss the various free expression protections afforded to employee of California public agencies. It is also intended to explain how public agency governing boards and officials may regulate such expression. When using this workbook it is important to consider that it is only a guide and cannot be relied upon for definitive legal advice regarding a specific situation. Free expression analyses are fact-intensive and the absence or addition of a particular fact can change an entire analysis.

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Disclaimer: This document is provided as a benefit to Liebert Library subscribers and cannot be shared outside of their organization. The information contained within is a template only and is not designed to address the specific and unique issues, internal rules, practices, and/or governing documents that might be in place at your organization. You should always consult with legal counsel prior to implementation of any documents.
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