bepress Legal Repository

Public Employees, Free Expression and the First Amendment

George Rutherglen, University of Virginia School of Law

Abstract

Over the course of the twentieth century, public employees went from having no First Amendment rights to having hardly any: from a regime in which they had a right to speak but no right to a job, to a regime in which, if they had a duty to speak as part of their job, they had no right to do so under the First Amendment. The decisions interpreting and applying the First Amendment, after many complications and much controversy, have ended up pretty much back where they began. The high point of protection for employee speech was Pickering v. Board of Education, which rejected the suggestion “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.” The Supreme Court instead required a balance “between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Although the outcome of this balancing test remained far from certain in any concrete case, even getting to this stage in the analysis became increasingly difficult, culminating in the recent decision in Garcetti v. Ceballos, establishing a categorical rule against protecting any speech “made pursuant to the employee’s duties.”

This article begins with a brief summary of existing law and the limited protection it accords to employee speech. These limitations are made all the more severe by the remedial framework in which claims of free arise. The general civil rights laws provide public employers with defenses of good faith, causation, and immunity, all of which restrict the effective scope of the remedies available to public employees. The next part turns to the interests invoked in protecting speech, beginning with the employees as “private citizens” and the doubtful role that speech on a matter of “public concern” plays in identifying those interests. Both terms need to be redefined and redeployed so that they can be used distinguish cases which are easy–because they involve no significant interest of the employer as an employer–from those which are relatively hard–because they do. The next part examines the employer’s interests and how they are defined and limited by the employee’s speech, returning to the exact nature of the speech in question in Pickering and Garcetti. This part also examines the transformation of the balancing test from Pickering into the categorical approach taken in Garcetti. Although the latter is more protective of employer interests than employee speech, it still allows courts to intervene to preserve the checking function of employee speech in cases in which it is truly necessary. The last part offers some specific rules that could be used to clarify the analysis of public employee speech cases. The crucial distinction, as developed earlier, turns on the presence of legitimate interests of the employer. When they are absent, the employee should be treated as a “private citizen” under the usual rules of First Amendment jurisprudence. When they are present, the employee’s protection necessarily is more limited, as it is under whistleblower statutes that protect only complaints about specific forms of workplace misconduct. This result, while perhaps dismaying from a civil liberties perspective, reflects the difficulty of devising general standards for protecting speech at an acceptable cost to the equally general need for management discretion. Progress instead must be made incrementally, by identifying those areas in which the public employees right to speak and the public’s right to know can be protected at an acceptable cost.

Subject Area

Constitutional Law, Public Law and Legal Theory

Recommended Citation

George Rutherglen, "Public Employees, Free Expression and the First Amendment" (February 2008). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 85.
http://law.bepress.com/uvalwps/uva_publiclaw/art85

No readers' reactions have been posted for this article. To submit one, copy the URL for this article (http://law.bepress.com/uvalwps/uva_publiclaw/art85) and click here.