Justice Department tells Ferguson police to stop wearing bracelets

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114. It's not nearly that cut and dried

As the Supreme Court has said, public employees also are citizens and don't lose all of the rights of citizenship, including free speech, when they accept public employment. The difficult issue is determining whether they are acting as a public official or a private citizen when they speak. Sending a letter to the editor: private citizen. Giving testimony as a public official: public official.

In this instance, those suggesting that a "uniform regulation" would make the difference between whether the bracelets could be banned or not are wrong. Even a "uniform regulation" cannot completely foreclose the exercise of free speech completely. But those arguing that the police can be banned from expressing themselves while in uniform also probably overstate matters.

The test has two parts 1) does the speech concern a matter of public interest, and (2) does the speech create a situation that would cause a diminution of the discipline by superiors or disharmony among coworkers.

In the Ferguson situation, the wearing of the bracelet probably meets the test of being speech concerning a matter of public interest. But it loses its protection because it likely would cause disharmony among co-workers and/or a diminution of the discipline by superiors who are trying to manage a racial powder keg.