The First Amendment and Government Employment

This one gets into the weeds of Constitutional Law a bit but the MBE will throw some curveballs so it's best to be ready for them.  Some questions may test how freedom of speech must be balanced with the right of a public employer to regulate the speech of a public employee.

The general rule outside of this specific context is that speech cannot be regulated based on the content of the speech unless the regulation is necessary to serve a compelling government interest. But this type of strict scrutiny might not apply when the government seeks to regulate the speech-related activities of a government employee and punish an employee for failing to follow those regulations.

A government employer may regulate a government employee's speech whenever the speech is made on the job and pursuant to the employee's official duties. And this is true even if the speech involves a matter of public concern.

In contrast, if the speech is not made pursuant to the employee's official duties, things get a bit more complicated.  If such speech does not involve a matter of public concern, then regulation and punishment by the employer is generally permissible provided the speech is disruptive to the work environment. But if this type of speech does involve a matter of public concern, courts will balance the employee's rights as a citizen to comment on matters of public concern against the government's interest as an employer in avoiding the kinds of controversy that might prevent performance of public services.

Also worth noting is that a provision banning government employees from accepting an honorarium for making speeches, writing articles, etc. has been held to violate the First Amendment when applied to "rank and file" employees.  Such speech can be regulated only if the government can show that the rights of the employee and the potential audiences to which the employee will be speaking are outweighed by the necessary impact that the speech would have on the operation of the government.

Lastly, the government may require its employees to take loyalty oaths provided those oaths are not vague or over-broad. An oath requiring an employee to support the constitution and to oppose the unlawful overthrow of the government is valid, but an oath requiring public employees to support or salute the flag is invalid (since one might choose not to do so on religious grounds).