The Solomon Amendment, Expressive Associations, and Public Employment


Rumsfeld v. FAIR apparently concedes that public employers, in the guise of public law school members of the FAIR association, have expressive association rights. This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees. Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).

Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have First Amendment rights of any kind. This is just structurally unsound from the standpoint that the Bill of Rights protects the governed, not the governing. To the extent that public employers have interests in promoting messages consistent with their public mission and image, it is instead better to conceive of these interests as those discussed in the Pickering line of cases concerning the need for governmental efficiency and lack of disruption in the public employment sector when discussing public employee First Amendment rights.

The purpose of this paper then is to hopefully point out an inadvertent error that the Court made in FAIR on its way to doing the heavy analytical lifting in that case and thus, permit this mistake to be corrected before the specter of public employer expressive associations causes substantial harm to public employee civil rights in the workplace.


Civil Rights and Discrimination | Constitutional Law | Education Law | Labor and Employment Law

Date of this Version

January 2007