Public Employee Speech
A MAN IN WILLIAMSON COUNTY, TENNESSEE, published a letter to the editor in a local newspaper giving his views on welfare policy. A man in Will County, Illinois, published a letter to the editor in a local newspaper giving his views on education policy. The man in Tennessee was fired from his job.[1] The man in Illinois first lost his job, then went to court and fought successfully to get it back.[2] The difference? The Tennessee letter writer on welfare policy worked as a computer consultant for a private firm. The Illinois letter writer worked as a high school teacher for the local public school system.
Placed side by side, these two situations point to concrete differences in employee free speech rights, differences that depend on whether a job is in the public or the private sector. Because of the rule of state action (as discussed in Chapter 2, the Constitution applies only to “state actors,” not to the actions of private parties), people holding government jobs generally do have more legal rights to free expression than people in private-sector positions. Government employees have more legal avenues to challenge infringements on free speech, as the Illinois school teacher discovered. But by recognizing fewer types of public-employee speech as “protected” and by giving more weight to the desire by government employers to limit speech in the name of workplace efficiency, courts are making it harder to win these challenges.
The divide between public and private is basic, not just to understanding employee rights but to a political and philosophical understanding of life and the law writ large in a modern democratic society. “Nothing is more central to our experience in American culture than the split between public and private,” write law professors Alan Freeman and Elizabeth Mensch. “It is the premise which lies at the foundation of American legal thought, and it shapes the way in which we relate to each other in our daily lives.”[3] The origins of the divide trace back at least to classical liberal political philosophers such as John Stuart Mill and John Locke, who discussed the importance of the divide for theorizing about the limits of governmental power and the relationship between religion and society.[4]
The boundary between public and private is a natural and appropriate place to explore the ways in which free expression is permitted (or is stifled) in employment. This chapter looks at how the law treats expression by public-sector employees, and Chapter 5 examines the private sector. The state of free speech in the public-sector workplace is important not merely because it differs from that in the private sector but because a large number of people are involved. Even though the vast majority of jobs in the United States are found in the private sector, the 16.3 percent of jobs in the public sector amounts to almost 22 million people living and working among us as teachers, police officers, social workers, public works employees, and, yes, bureaucrats.[5] The ability of these people to speak freely and publicly about the agencies where they work is an important way of keeping tabs on the effectiveness of the critical services they provide, and by extension the effectiveness of open government in a democratic society.
In public-sector employment, one works for the government (federal, state, or local), so one's employer is unambiguously a state actor. Accordingly, public-sector employers can be held responsible for abusing the constitutional rights of workers, although the operative phrase here is “can be” (as opposed to “will be”). A government employer is theoretically accountable for constitutional violations, but in the real world of legal practice that accountability has meaning only when courts (or legislatures) have recognized that some particular action—like firing someone because of his expressive activity—amounts to a distinct constitutional wrong that can be remedied.
Free speech has been a core constitutional value in the United States for well over 200 years, but recognition that government employees deserve some protection for expressive activity on the job goes back only to the middle of the twentieth century. Since then, the speech rights of public employees have evolved mainly through an ebb and flow of court decisions, some of which expanded rights and some of which deflated them. As with the principles discussed in Chapters 2 and [3]in this history we find a haphazard blend of court decisions (common law) and actions by legislatures (statutory law). The inescapable result is a legal landscape for public employee speech that features moving targets, imprecise outcomes, and inconsistencies across cases and jurisdictions. Where this history leads is to the conclusion that public-sector employees have some definite, but distinctly limited, free speech rights. Where it starts is in a small town in Massachusetts in the late nineteenth century.
IT CAME FROM MASSACHUSETTS
The history of public employee speech begins, in one of the few free speech cases prior to World War I, with John McAuliffe, a police officer in New Bedford, Massachusetts. In February 1891, McAuliffe was fired by the mayor for breaking a police department rule prohibiting officers from campaigning for candidates or soliciting aid for any political purpose. He sued in state court, charging (among other things) that the rule violated his right to express political opinions. The Massachusetts Supreme Judicial Court ruled against McAuliffe's right to private political speech in an opinion written, somewhat ironically, by Oliver Wendell Holmes, who thirty years later as a U.S. Supreme Court justice would author key opinions in landmark political speech cases. Holmes famously wrote that McAuliffe “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman” and added, in an interesting juxtaposition, that employees when they take a job agree to suspend their “right of free speech, as well as of idleness.”[6]
Although the decision involved one employee in one isolated case in a single state, McAullife v. Mayor of New Bedford was a proxy of sorts for all of constitutional law regarding public employee rights for the next half century. The U.S. Supreme Court many years later acknowledged the importance of what Holmes had said, noting that from the time he wrote his famous sentence in the early 1890s until the Court began to recognize public employee rights in the 1950s, “Holmes' epigram expressed this Court's law.”[7] During those sixty years, much like the preceding century, the free speech and free association rights of public employees were scarcely different from the rights of private employees, which is to say they scarcely had any at all.
THE 1950S: LOYALTY, SUBVERSION, AND ASSOCIATION
With rising anxiety about Communism and the Soviet threat in the early 1950s, the federal courts started to see what would become a string of cases in which suspicions about membership in “subversive” groups cost people their jobs. As has so often been the case in the history of constitutional law, the Supreme Court got it wrong before getting it right.
The Court got it wrong in a case brought by group of teachers who were challenging a New York law that disqualified from employment in public schools anyone who advocated, or joined a group advocating, the forceful overthrow of the government. The law also required state education officials to work up a list of such organizations and to treat membership in them as evidence of guilt. Sixty years had passed since the Massachusetts police officer's case, but the Supreme Court's majority in Adler v. Board of Education in 1952 was clinging to the same minimalist view of public employees' rights—if you don't like the rules, too bad: “They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere.”[8] In treating schools and classrooms as places requiring vigilance for potentially subversive activities, the Court seemed unconcerned with guilt by association:
From time immemorial, one's reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate.[9]
In a brief but spirited dissent, Justice William O. Douglas raised a core issue about rights that the Court's majority was willing to overlook: “I cannot … find in our constitutional scheme the power of a state to place its employees in the category of second-class citizens by denying them freedom of thought and expression.”[10] As long as a teacher is law abiding and meets professional standards, Douglas wrote, “her private life, her political philosophy, her social creed should not be the cause of reprisals against her.”[11]
The Court had another opportunity just months later in a case about an Oklahoma law that required state employees to sign a loyalty oath promising not to advocate revolution or forceful overthrow of the government and to pledge to avoid (and to have avoided for the previous five years) membership in Communist or subversive groups.[12] State officials in Oklahoma thought the law was constitutionally dubious and apparently weren't enforcing it. The case that reached the Supreme Court started as a lawsuit by a citizen-taxpayer trying to force state officials to stop paying state employees who hadn't signed the oath. The Court threw out the law as arbitrary and unfair because it didn't distinguish between people who attached themselves to subversive groups and causes innocently versus those who did so knowingly. Although in this case, Weiman v. Updegraff, the Court wasn't yet ready to kill the notion that public employees should follow the rules or go elsewhere, it did assert that freedom of association matters, both for personal dignity and for larger principles of free speech:
There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy…. Yet under the Oklahoma Act, the fact of association alone determines disloyalty and disqualification; it matters not whether association existed innocently or knowingly.[13]
The Court went on to link freedom of association with the “flow of democratic expression” in society, a compelling example of how two principles— freedom of expression related to the workplace and free speech in society at large—are interlaced.
The Supreme Court faced an interesting twist on freedom of association eight years later (in 1960) in a dispute over an Arkansas law requiring all teachers at public schools, including those at universities, to declare group memberships or lose their jobs. Unlike in the earlier cases, this law didn't merely seek disclosure of ties to “subversive” groups; it required teachers to list all groups of any type to which the teacher belonged or contributed, going back five years. The Court struck down the law. Although still willing to tolerate some interference with the associational rights of public employees, the Court said the state of Arkansas had overreached by going “far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and competency of its teachers.”[14] As a historical footnote, this case, Shelton v. Tucker, is one of a few that emerged from efforts in Southern states, as the civil rights movement gained steam, to hamper the NAACP by forcing disclosure of the group's membership lists.[15]
In 1967, in the important case Keyishian v. Board of Regents, the Supreme Court parted ways for good with the view that public employees surrender their constitutional rights when they go to work. Harry Keyishian and some faculty colleagues at the University of Buffalo (which had just become a public university) refused to sign statements, required by state law, certifying that they were not then or had previously been associated with Communists or linked to any group advocating government overthrow. In going to court, Keyishian and his fellow professors were challenging the same set of laws (slightly modified in the interim) that the Court had found acceptable in the Adler case fifteen years earlier.
Although it believed that a state can try to protect its educational system from subversion, the Court now felt that the New York laws were unacceptably vague, punishing employees for association that is entitled to First Amendment protection. It was, however, a tight 5-4 decision, an indication that the Court was still struggling with the reach of expressive rights and other rights in public workplaces, especially schools. The four dissenters viewed subversive speech and association as legitimate threats to educational institutions and by extension as threats to democracy. The issue was not freedom of speech, assembly, or association, they said, but whether someone who deliberately advocates or teaches that government “should be overthrown by force or violence” ought to be disqualified from teaching in its university.[16]
Although close, the Keyishian decision signaled the Court's broader willingness to start a death watch for the long-standing principle that employer prerogative almost always trumps employee rights. The Court's majority wrote: “The theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.”[17] With the run of cases that began after the unfortunate outcome in Adler in 1952 and culminated with this one in 1967, the Court had expanded public employee rights to free expression and association and breathed life into the idea that employment ought not be conditioned on a wholesale denial of constitutional liberties.[18] But, as we will see, the life turned out to be not such a long and happy one.
MR. PICKERING GOES TO WASHINGTON
The First Amendment dustups during the 1950s and 1960s were mainly about association—the rights of public employees to participate in supposedly “subversive” causes without fearing for their jobs. Next came a more direct test of the willingness of courts to tolerate not just association but actual speech. It began with a science teacher at Lockport East High School in Illinois who in September 1964 wrote a letter to the editor of his local newspaper. It ended almost four years later with a landmark U.S. Supreme Court decision on speech by public employees.
Marvin Pickering's letter in the Lockport Herald criticized the school board and administrators for their handling of a series of funding issues going back three years (when funding for two new high schools was approved) and addressed current events (a recent defeat by voters of a tax hike that would have further funded these schools).[19] Pickering, who taught at one of the new schools, complained about the balance in funding between athletics and academics and charged that officials were misleading people about how money would be used. His letter rambled somewhat over a variety of concerns but was pointedly critical, with passages that included the following (excerpted here to illustrate the letter's tone rather than its arguments):
I am not saying the school shouldn't have these facilities, because I think they should, but promises are promises, or are they?
The superintendent told the teachers, and I quote, “Any teacher that opposes the referendum should be prepared for the consequences.” I think this gets at the reason we have problems passing bond issues. Threats take something away; these are insults to voters in a free society.
That's the kind of totalitarianism teachers live in at the high school, and your children go to school in.
The bond issue is a fight between the Board of Education that is trying to push tax-supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don't know whom to trust with any more tax money.[20]
Pickering closed by saying that he wrote the letter “as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration.” His offhand distinction between speaking as a citizen versus as an employee turned out to be prophetic: it was the mainspring of a key Supreme Court ruling on speech by public employees thirty-eight years later—but that's a story for later.
Before sending his letter to the paper, Pickering showed a draft to his wife, who told him, “You're probably going to get fired.”[21] After it appeared, and after a hearing, the board of education did indeed fire Pickering on the grounds that he had breached an obligation of loyalty to his superiors; the letter, they concluded, contained factual errors and was “detrimental to the efficient operation and administration of the schools of the district.”[22] Pickering challenged his firing as a violation of First Amendment rights in state court, losing first in circuit court and then in the Illinois Supreme Court, which found that “a teacher who displays disrespect toward the Board of Education, incites misunderstanding and distrust of its policies, and makes unsupported accusations against the officials is not promoting the best interests of his school, and the Board of Education does not abuse its discretion in dismissing him.”[23]
The U.S. Supreme Court took the case, and in a near-unanimous ruling (one justice dissented in part), it handed Pickering a resounding victory. Referring to some of the earlier cases I discussed above involving freedom of association, the Court made it clear again that public employees cannot be compelled to relinquish constitutional rights that they would otherwise enjoy as citizens. But Thurgood Marshall, writing for the Court, did allow that speaking out as a citizen and speaking out as a public employee are not quite the same thing:
The problem in any case is to arrive at 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.[24]
The key phrase is the one italicized—matters of public concern—because it implies that Pickering's speech would not have been protected had it not been on such matters. The Court said school funding qualifies as a legitimate public concern on which “free and open debate is vital to informed decision-making by the electorate” and added that teachers are uniquely positioned to have informed opinions about it: “It is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.”[25] This goes to the heart of why free expression in the public-sector workplace is crucial: Government employees are uniquely positioned to understand and form opinions about the often vital public services to community and society they help to deliver. Silencing their views about how the government is working is no way to run a democracy.
As an aside, the notion of “public concern” as a basis for First Amendment protection was not new, just new to the context of employee speech. Its origins lie in an important 1940 case on the rights of labor unions to peacefully picket, a case in which the Supreme Court said speech on matters of public concern illuminates “issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.”[26] The importance of speech on public issues has been an essential idea in the development of law during the twentieth century in such diverse areas as libel and defamation, protest speech, and corporate speech, among others.[27] The court cases on symbolic expression (especially flag desecration) that I mentioned in Chapter 1 breathed life into the idea that speech on matters of public concern deserves special attention and protection.
By the way, the Court wasn't particularly concerned that some things said in Pickering's letter were factually incorrect. A few years earlier in the historic free speech case New York Times Co. v. Sullivan, the Court had established the principle that false statements against public officials are legally defamatory only if it can be demonstrated that the speaker knew they were false or acted with “reckless disregard” for the truth.[28] In Pickering's situation, said the Court, the mistakes were made in good faith— more careless than reckless. Marvin Pickering returned to his job at Lockport East High School in 1969 and taught there for twenty-eight more years until his retirement.
CONCERN ABOUT PUBLIC CONCERN
Pickering is among the most important cases on workplace expression because it was the first where the Supreme Court made it clear that public employees can't (necessarily) be fired for exercising First Amendment rights to speak out on matters of public interest. Some decisions of the Supreme Court qualify as landmarks, however, not because they settle a critical matter of law but because they launch one. Pickering turned out to be one of those cases that did far more launching than settling. It marked a significant expansion of public employee speech rights, but in doing so it left a couple of critical questions unanswered:
In Pickering, the Court said that speech merits protection when it addresses matters of “public concern.” The Court asserted that the school funding issue in that case qualified, but it didn't provide a detailed analysis of how or where that line should be drawn in other situations. So what's included and what's not?
In Pickering, the Court said that the employee's right to expression should be balanced against the employer's interest in promoting the efficiency of its public services. The Court mentioned such factors as maintaining discipline, ensuring harmony among co-workers, and preserving close working relationships, but it declined to draw general standards for assessing this balance. How much discretion does a public employer have to sacrifice individual rights in the name of efficiency?
By establishing the broad principle that public employees have free speech rights worth protecting, Pickering spawned many court cases in which individuals sought to assert First Amendment rights in the government workplace. Over the next decade, three of these reached the U.S. Supreme Court. Although none of them were as momentous as Pickering, each shed additional light on the Court's view of the speech rights of public employees. All three cases again involved teachers. It is worth saying a few words about each.
First, Sindermann (1972): This case involved a Texas junior college professor named Robert Sindermann, who was employed under a series of one-year renewable contracts. As a leader of a statewide junior college teachers association, Sindermann testified on several occasions before state legislative committees and was involved in public disagreements with college administrators. When after four years the college declined to renew his contract with no explanation, he filed a federal lawsuit claiming that he was being punished for his public criticism of administrators—a violation of his free speech rights. He also charged that the lack of explanation or opportunity for a hearing violated his due-process rights. Sindermann lost initially in a lower court, but he won on appeal and prevailed in the U.S. Supreme Court.[29]
What made this case important is that Sindermann (unlike Pickering in Pickering) wasn't fired; he was simply not rehired to a new contract when the old one expired. The Court was recognizing here that even though a person has no inherent right to a government benefit (like a contractual teaching job with no tenure), the government cannot withdraw a benefit for reasons that infringe on that person's constitutional rights. To put it another way, there's no need for a hearing or due process when someone's contract is not being renewed unless the decision not to rehire is rooted in a denial of a liberty interest (such as free speech). And you don't have to have tenure to defend yourself against such a denial.
Second, Mt. Healthy (1977): Fred Doyle was an untenured public school teacher in Ohio whose contract was not renewed after he had verbal altercations with school employees and directed an obscene gesture toward two students. Separately, the teacher conveyed information about a proposed dress code policy to a local radio station, which reported the policy as a news item. In deciding to let him go, the school system's administration grouped all these actions together as “a lack of tact in handling professional matters.” Doyle sued in federal court claiming a violation of First Amendment rights. He initially won reinstatement and back pay, but on appeal the Supreme Court disagreed, finding that although Doyle's communication to the radio station was protected speech, his other behavior wasn't, and might have cost him his job anyway.[30] (A lower court later concluded that it indeed would have.)[31]
The Supreme Court in this case was retreating from its deference to employee free speech rights: a public employee fired for exercising free speech has to prove that it was the motivating factor; an employer can fight back by showing that even without the protected speech, the employee would have been fired anyway. This principle seems reasonable at first glance, especially given the facts of this particular case: a free speech claim ought not be able to cover for truly bad behavior. It does, however, open the door for employers to engage in a form of bad behavior of their own— contriving other grounds to discipline or terminate as a way to mask objections to employee speech. An employee speaking out now has to worry that the boss might have another reason to fire him, or in any event might be able to persuade a jury that another reason exists.[32]
Third, Givhan (1979): Mississippi school teacher Bessie Givhan lost her job because of (among other things) an “antagonistic and hostile attitude” toward school administrators.[33] That phrase was shorthand for a series of private encounters between Givhan and the school principal during which she expressed concerns about possible discriminatory employment practices. Administrators thought she was making “petty and unreasonable demands,” but in the lawsuit that Givhan brought, a federal court found that the demands were neither petty nor unreasonable. The judge ruled in her favor, but she lost in an appellate court, which found that her complaints to the principal did not amount to protected speech because they were conveyed in private:
Neither a teacher nor a citizen has a constitutional right to single out a public employee to serve as the audience for his or her privately expressed views, at least in the absence of evidence that the public employee was given that task by law, custom, or school Board decision. There is no evidence here that Givhan sought to disseminate her views publicly, to anyone willing to listen. Rather, she brought her complaints to [Principal] Leach alone.[34]
But Givhan ultimately prevailed at the U.S. Supreme Court, which rejected the notion that free speech on matters of public concern has to be aimed at the public to deserve protection. Speaking for a unanimous Court, Justice William Rehnquist wrote that “neither the [First] Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.”[35]
So in the twelve years following the crucial Pickering case, the Supreme Court had pushed the public employee's right to free speech forward in a couple of constructive ways: First, public employees can challenge not just being fired for their protected speech but also for not being rehired after a contract expires. Second, public employees' protected workplace speech doesn't lose its protection when delivered in private rather than directed at a public audience. But the Court had also pulled back somewhat when it said that an employee dismissed because of protected speech has to show that speech was the deciding factor—that she would not have been fired but for the expressive activity. In fact, given the basic rule of employment at will—the ability to fire for any reason or no reason—a fired worker's need to show that he lost his job for one particular reason (like speech) can be difficult indeed.
At this point in the early 1980s, protection of public employees' expressive rights was probably at its highest point. We still didn't have clear answers, however, to those two questions raised twelve years earlier in the wake of the Pickering case: First, what does speech on “matters of public concern” really mean? And, second, how do we balance an employee's free speech interest against a government employer's efficiency interest? Then came Connick.
LAWYERS NOT IN LOVE
Sheila Myers worked for Harry Connick. She was an assistant district attorney (ADA) in New Orleans. He was the district attorney (DA) for Orleans Parish (and still is the father of musician and actor Harry Connick Jr.). In October 1980, Myers learned that she was being transferred to a different section of the criminal court. Unhappy with this news and with other things going on in the district attorney's office, Myers prepared and distributed to several ADA colleagues a questionnaire seeking their views on various issues concerning transfer policies, staff morale, grievance procedures, and pressures to work in political campaigns. After learning about this, Connick fired Myers, telling her that it was because she wouldn't accept the transfer and because her questionnaire amounted to an act of insubordination.[36]
Myers sued in federal court, saying she'd been fired for exercising her First Amendment rights. She argued that the questionnaire was a form of protected speech and that it was the real reason for her dismissal. Connick maintained, then and long after, that Myers's refusal to accept the transfer was the reason he fired her.[37] Lower courts agreed with Myers, ordering her reinstated with back pay and damages. A divided (5-4) U.S. Supreme Court overturned the outcome, siding with Connick and concluding that Myers did not have a valid First Amendment claim.[38] The ruling in Connick v. Myers is significant—Connick and Pickering are the “big two” on public employee speech—because it took on directly the two key unresolved issues from Pickering: the meaning of “public concern” and the nature of the balance between speech rights and employer interests.
In denying relief for Sheila Myers, the Court said her questionnaire amounted to speech on a matter of public concern only to a very limited extent: one item (out of fourteen) asked if ADAs felt pressured to help out with certain favored political campaigns. The rest of it, said Justice Byron White for the Court's majority, looked more like a workplace grievance about internal office matters. Unless the employee's speech relates to “any matter of political, social, or other concern to the community,” White wrote, government employers should be able to manage their agencies without interference from judges in the name of the First Amendment.[39]
The ruling went on to lay out a mechanism for determining whether speech qualifies as a matter of public concern: it must be determined “by the content, form, and context of a given statement, as revealed by the whole record.”[40] Applying this test, the Court said that Myers's concerns about office morale, trust, and grievances were mere extensions of her own dispute over being transferred and not efforts to inform the public about the performance of the district attorney or the ability of his office to fulfill its responsibilities. Although it might be good practice for public officials to be receptive to constructive criticism, said the Court, “the First Amendment does not require a public office to be run as a roundtable for employee concerns over internal office affairs.”[41]
The Court also spoke to the tricky issue of how to balance employee and employer rights. (Because Myers's one questionnaire item about political campaign activity did touch on a matter of public concern, the Court couldn't sidestep this.) The Court conceded that the questionnaire did nothing to impair Myers's ability to perform her job, but it accepted Connick's view that as an act of insubordination, Myers's actions jeopardized working relationships. Most important, White's opinion included a couple of general statements that had the alarming effect of clearly tilting the balance toward employers: “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate.” And this: “The fact that Myers … exercised her rights to speech at the office supports Connick's fears that the functioning of the office was endangered.”[42]
Writing for the four justices who dissented in Connick, William Brennan disagreed sharply with the idea that the internal workings of a public agency like a district attorney's office are not a public concern: “Unconstrained discussion concerning the manner in which the government performs its duties is an essential element of the public discourse necessary to informed self-government.”[43] The dissenters were saying, quite reasonably, that we can't know if the public will care to learn that morale is poor at some public agency; the First Amendment protects the spread of that information so that the people, and not the courts, can decide if it's useful. The dissenters also were justifiably alarmed at what they called the Court's “extreme deference” toward employer judgments.
Rejecting the notion that speech should be suppressed simply because an employer is apprehensive about possible disruption, Brennan predicted that the Connick outcome would “inevitably deter public employees from making critical statements” about how government agencies work for fear of being fired.[44] The Connick decision, with its test for speech that qualifies as a matter of public concern and its fealty to employer judgments, put a halt to the expansion of public employee speech rights that had been occurring since the 1960s. It didn't, however, do much if anything to reduce the volume of employee free speech cases.
The Supreme Court in Connick seemed to want to draw some lines that would limit the number of disputes around employee speech that reached the courts. The Pickering outcome fifteen years earlier had spawned a lot of litigation that cynics (including some on the Court) regarded as “glorified workplace gripes.”[45] The majority in Connick worried that “government offices could not function if every employment decision became a constitutional matter,” and their solution was to exclude speech about the internal operations of an office from the province of public concern.[46] But it didn't really work; since Connick, dockets have been replete with employee speech cases. Attorney Tom Goldstein, a prominent Supreme Court practitioner, calls the state of the law in this area “very confused in the lower courts” in large measure because of Connick's “very flexible standard.”[47]
AFTER CONNICK: MORE CONCERN ABOUT PUBLIC CONCERN
For all its attention to the public-concern test, the Connick decision did little to clarify the question of when employee speech addresses a matter of public concern and is therefore deserving of protection. A number of courts and law review articles have grappled with this issue in the years following the decision. As one writer, in an article published seven years after Connick, puts it: “No one knows what ‘public concern’ is…. [The Court's] descriptions of public concern provided just enough guidance to confuse everyone.”[48] Another writer complains that the public-concern test is too broad because it doesn't require employers to define any policies for the kind of speech they will tolerate or punish. As a result, the Court is letting employers make “ad hoc and standardless terminations” in response to speech they don't like.[49]
The next employee speech case to reach the Supreme Court, Rankin v. McPherson in 1987, involved a very different (some might say disturbing) sort of expression but provides a good illustration of the confusion over the principle of public concern. Ardith McPherson was a data-entry clerk in the constable's office in Harris County, Texas (Houston). After hearing a radio report on March 31, 1981, about the attempt to assassinate President Ronald Reagan, McPherson remarked to a co-worker, “If they go for him again, I hope they get him.” Someone who overheard the remark mentioned it to Constable Walter Rankin, who promptly summoned McPherson to his office. When she confirmed that she had said it, he fired her.[50] She sued.
Does expressing hope for a successful presidential assassination attempt amount to speech on a matter of public concern? The case largely turned on this question. McPherson lost initially in a district court, where a judge found her remark to be “more than political hyperbole,” and in fact “violent words, in context.”[51] A federal appeals court disagreed, finding that although her comment was distasteful, “the life and death of the President are obviously matters of public concern.”[52] The Supreme Court agreed: “The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”[53]
The decision in the Supreme Court was close (5-4) again, with another spirited dissent, this one penned by Antonin Scalia. Scalia seemed incredulous at the notion that criticizing a president and wishing for his assassination (“expressing approval of a serious and violent crime”) could both fall within the province of public concern. “The public would be ‘concerned’ about a statement threatening to blow up the local federal building or demanding a $1 million extortion payment,” wrote Scalia, “yet that kind of ‘public concern’ does not entitle such a statement to any First Amendment protection at all.”[54] But if McPherson's remark was not something that could be prosecuted as a criminal threat—and all sides apparently agreed that it wasn't—then perhaps it is Scalia who succumbed to hyperbole.
The Rankin case also shed light on the balancing issue—the weighing of employer interests against employee rights that had been a key aspect of employee speech law for almost twenty years (since Pickering). Constable Rankin pointed to issues of workplace mission, efficiency, and disruption, insisting he shouldn't have to employ someone who “rides with the cops and cheers for the robbers.”[55] Although a district court judge agreed with this viewpoint, an appeals court and the Supreme Court didn't find it persuasive: as a back-office clerical worker, McPherson had no law-enforcement duties, no access to sensitive information, and no contact with the public. Justice Lewis Powell, in a concurring Supreme Court opinion, put the overreach of the constable's argument in helpful perspective: “The risk that a single, offhand comment directed to only one other worker will lower morale, disrupt the work force, or otherwise undermine the mission of the office borders on the fanciful.”[56]
The balance tilted back toward employers as a result of an employee speech case that reached the Supreme Court in 1994. A nurse at a public hospital in Illinois was fired for critical statements about supervisors and hospital policies that she made to a co-worker.[57] An investigation by the hospital at the time led it to conclude that the nurse's comments should not be treated as protected free speech because they were potentially disruptive. After the nurse sued the hospital, the court proceedings revealed that there was a dispute about the content of her speech after the fact and that perhaps her speech was protected and nondisruptive.
What's important here is the Court's conclusion that if the hospital had conducted an adequate inquiry at the time and relied on it when it fired the nurse, then that was good enough. In other words, the Court was saying, an employer is off the hook when it makes a sensible prediction based on a reasonable inquiry that speech will be disruptive; it need not be held accountable for information that comes out later in litigation. The Court also helped the cause of future employers inclined to punish employee speech by making it clear that actual disruption is not the test; an expectation of disruption is sufficient.[58]
A win of some significance for speech over repression came in one final 1990s case that reached the high court. A Kansas county's board of commissioners cancelled a private firm's contract to haul waste, supposedly because the hauler was an outspoken critic of the board. When the hauler's lawsuit challenging this action reached the Supreme Court, justices used the opportunity to provide government contractors with essentially the same First Amendment protections that public employees enjoy.[59] The ruling signaled that a government agency generally cannot terminate a contract, or halt an automatic contract renewal, solely in retaliation for the contractor's speech on a matter of public concern. Given a rise in outsourcing of government services in recent years, this was an important step in protecting the expressive rights of people who work with, rather than for, government.
PUBLIC CONCERN WITH SEX
The Supreme Court has twice taken up employee speech in this decade, first in a case that was entertaining, if ultimately not all that significant, and second in a case that was far more significant if perhaps not all that entertaining. Although the first case didn't reshape the law on employee speech, it is worth recapping here because it did inspire the Court to get a bit more specific about the meaning of “public concern.” It began when a San Diego police officer was fired after his supervisors discovered that he was selling videotapes (on eBay) of himself stripping out of a police uniform and masturbating. The officer, whose username on eBay was Code3stud@aol.com (a detail I mention here mainly to buttress the claim that the case is entertaining), failed to remove the items for sale when asked by superiors to do so and was fired.
In the officer's lawsuit charging that his First Amendment rights were violated, the Supreme Court rejected his claim out of hand, calling it “not a close case.” The Court said that to be on a matter of public concern, speech has to address “something that is a subject of legitimate news interest … of value and concern to the public at the time of publication.”[60] The San Diego officer's speech didn't qualify, said the Court, nor was it aimed at helping citizens understand the functioning of the police department. Accordingly, it failed the public-concern test and deserved no protection, a finding that freed the city to fire the officer on the grounds that his actions were detrimental to the department's mission or in violation of department rules about off-duty conduct or both.
A remarkable thing about this case is that the officer actually won his case in the Court of Appeals for the Ninth Circuit before it went to the Supreme Court.[61] Conceding that the videos were “crude and sexually explicit, but … not obscene,” the appeals court said the officer's expression “was not about private personnel matters, was directed to a segment of the general public, occurred outside the workplace and was not motivated by an employment-related grievance.”[62] The point of the public-concern test, the court reasoned, is to weed out claims in which the punished speech relates to an employee's personal job situation, not to filter out a vast range of non-job-related speech. Interpreting public concern to mean “speech that does not relate to internal office affairs or the employee's status as an employee,” the two (of three) judges on the Ninth Circuit panel essentially concluded that the officer's strip-and-masturbate videos were in fact speech on a matter of public concern! The Supreme Court obviously didn't think so, nor did the dissenting judge in the Ninth Circuit, who called it an “absurd result.”[63] But the very fact that two of three federal appeals court judges (even in the reputationally challenged Ninth Circuit) would adopt this view makes for a compelling illustration of how capricious the public-concern doctrine can be.
The whimsy deepens when one delves further into the casebooks for related examples. I mentioned in Chapter 1, for instance, a Baltimore police officer who spent his off-duty time giving musical performances in blackface makeup. A court found his performances to be speech on a matter of public concern because it was artistic expression of interest to people who paid to attend.[64] On the other hand, a Little Rock police officer's costume featuring blackface makeup at a Halloween party was not speech on a matter of public concern because the setting was a private party rather than public entertainment.[65] These examples, drawn from what one hopes is a limited body of police-in-racist-garb jurisprudence, illustrate the kind of enigmatic issues that the public-concern test compels courts to wrestle with. Is the stripper cop's video more like a public “artistic” performance? Or a private act meant to convey no particular message? The majority and dissenting opinions in the San Diego case in the Ninth Circuit took up these weighty issues at some length. One is tempted to speculate that overworked judges with busy dockets have better things to do with their time.
Although having nothing to do with sex, race, or videos, possibly the most significant employee speech ruling since Connick occurred in 2006 when the Supreme Court ruled against a prosecutor who got in trouble for bringing concerns about the integrity of a pending case to his boss's attention. Richard Ceballos, a deputy district attorney in Los Angeles, had reason to believe that sheriff's deputies had falsified an affidavit to get a search warrant in an auto-parts-theft case. After looking into it, Ceballos shared his suspicions with his supervisors in a memo and in conversations and urged them to drop the case. They declined, and Ceballos ended up being subpoenaed by defense lawyers to testify in a hearing on a motion to dismiss the case. According to Ceballos, his supervisors punished him for his actions by removing him from the prosecution team, demoting him, and transferring him to a less desirable branch of the district attorney's office. He sued in federal court charging retaliation for speech protected by the First Amendment and won in a federal appeals court, but he ultimately lost in the Supreme Court.
The Supreme Court in Garcetti v. Ceballos concluded that Ceballos's comments amounted to “job-related speech,” not speech on a matter of public concern. Writing an internal memo about an upcoming case is what a deputy district attorney is supposed to be doing, the Court reasoned, so the commentary contained within cannot be protected speech. Writing for the Court's majority in (another) tight 5-4 decision, Justice Anthony Kennedy said that limiting job-related speech “does not infringe any liberties the employee might have enjoyed as a private citizen.”[66] But this doesn't seem right. Drawing a line between speech that is part of the job and speech that is “enjoyed as a private citizen” denies the possibility that speech can be both at the same time. Justice David Souter made this point in dissent: “A citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day.”[67]
The distinction between speech-as-employee and speech-as-citizen raises the odd possibility that the same message can be protected or unprotected speech, depending on how the speaker casts himself and how he elects to convey the message. It's conceivable, for example, that a job-related remark to the boss can get you fired, but the same remark made to a journalist (to whom one speaks as a “citizen”) could bring First Amendment protection. The Court assumed that this distinction wouldn't pose a problem because the test isn't where or to whom a message is delivered; it's whether delivering the message is part of the employee's official duties. The Court's logic here isn't terribly persuasive because it's not that hard to imagine circumstances in which the line is blurred. What if a school teacher criticizes the curriculum both to the principal and at a public school board meeting?
Government employers may take from this case an incentive to write very broad job descriptions that would bring more expressive behavior under the umbrella of “job related.” Souter's dissent raised the possibility of a school that now writes a teacher's job description to include an obligation to contribute to the sound administration of the school. In that hypothetical example (which Souter transparently calibrated to the 1968 Pickering case's outspoken teacher), the simple expedient of writing a more expansive job description would undermine the important speech protections that Pickering created almost forty years before.[68] The Court's majority tried to minimize this concern, insisting that future courts will evaluate what a person in a job actually does, not what a job description says. This declaration isn't wholly reassuring. In Souter's teacher example, how do we know if a nonspecific, immeasurable contribution to the soundness of the school is something the teacher actually does? And what happens when the employer and the employee disagree about that? After more than twenty years of marked judicial deference to employer judgments in workplace speech cases, it is hardly a stretch to surmise that courts will be more inclined to look at job-related speech through an employer's eyes than through an employee's.
Notwithstanding the ongoing confusion over what speech on “public concern” actually means, the whole idea that public concern should be the benchmark for speech by public employees that is or isn't protected has a philosophical dark side. Superficially, the idea of a public-concern test makes some sense: speech on public affairs has, after all, been regarded as essential to the health of deliberative democracy at least since James Madison and his compatriots were drafting the Bill of Rights. But critics point to several troubling aspects of the public-concern test in practice.
First, we may not want to give judges the discretion to decide in each case whether speech is or is not on an issue of public concern. Cynthia Estlund worries that giving this power creates “a judicially approved catalogue of legitimate subjects of public discussion”—an alarming development given that “the Constitution empowers the people, not any branch of the government, to define the public agenda.”[69] Judges are generally fine people, and we grant to them the authority to make important calls on serious matters, but that doesn't mean they should determine which issues are and are not worthy of public attention.
Second, the public-concern requirement affects the choices individual government workers make about their speech, a result that can give rise to a potentially serious class bias in how those choices play out. Again Cynthia Estlund: the public concern formula “favors those who have the resources to publicize their concerns through the mass media or to ‘petition the government,’ through lobbying, for official intervention… [and] favors those who can afford to consult counsel, and who can tailor the form of their complaints and choose their forum accordingly.”[70] In other words, giving priority to speech on matters of public concern creates an inherent bias toward speakers who are educated, organized, and know how to get their issues aired in the broader sphere of political discourse.
Third, the public-concern standard favors those with points of view that an employer happens to like. The First Amendment generally forbids government actors from discriminating against disfavored ideas or views. It's this principle, known as “viewpoint discrimination,” that prevents a city from, say, allowing Democrats but not Republicans to rally in a public park or from allowing Christians but not Muslims from airing a program on a public-access television station. Chicago municipal attorney Lawrence Rosenthal argues that the public-concern standard has the undesirable effect of making viewpoint discrimination by a public employer perfectly acceptable. Because expression that is not on a matter of public concern is left unprotected by the First Amendment, Rosenthal writes, when such speech occurs the employer is free to take punitive action “motivated by hostility to the ideas or viewpoints expressed rather than by any reasonable fear of workplace disruption.”[71]
The public-concern test is a convenient vehicle that courts can use to rebuff free speech claims when employees are punished for speaking out about workplace practices, and it is one they are not shy about using. Constitutional law professor Stanley Ingber describes the courts post-Connick as “notably solicitous toward public employers” when they weigh workplace speech claims.[72] Some would say this inclination is a good thing—discouraging employees from making a federal case (so to speak) out of their petty personal complaints about working conditions. But at what cost? In the name of reducing the volume of employee speech lawsuits, we make it harder to inject new issues into the public discourse, which means some worthwhile speech is inevitably suppressed, which in turn distorts the larger climate for public discussion on important issues. And many would say that's a bad thing.
WHISTLING IN THE DARK
When people think of employee speech that ought to be legally protected from an employer's retribution, one of the first things that comes to mind is whistleblowing—reporting on illegal, unethical, dangerous, or otherwise inappropriate behavior. Whistleblowing can target a number of types of behavior, including a violation of the law, a regulatory infraction, a danger to public health or safety, an abuse of authority, financial malfeasance, a violation of corporate policy, or gross mismanagement.[73] The employee who speaks out as a whistleblower can do so internally (reporting to higher-ups within the organization where he works) or externally (reporting to law enforcement or regulatory authorities, or perhaps to the press). In her book Whistleblowing—When It Works and Why, Roberta Ann Johnson describes whistleblowing as “a common means of dissent in a bureaucracy” that in the United States is not just a growing phenomenon in workplaces but an expanding part of our cultural landscape, with whistleblowers portrayed as heroes and experts in films and news broadcasts.[74]
The legal origins of employee whistleblowing go all the way back to the Civil War, and a law called the False Claims Act, which was enacted in 1863 (and strengthened in 1986) in an effort to curb fraud by government suppliers.[75] Courts in many states began accepting whistleblowing as an exception to employment at will during the second half of the twentieth century shielding employees from employer discipline or termination for blowing the whistle on illegal behavior. By the turn of the twenty-first century, most states had enacted statutes protecting whistleblowers.
At the federal level, the law is not now as accommodating to whistleblowers as it was a decade ago. A number of federal laws are in place that protect whistleblowers in specific regulatory areas, such as banking, occupational health and safety, and the handling of toxic materials.[76] But ongoing controversy around a federal law known as the Whistleblower Protection Act (WPA) has called the protection of whistleblower speech by federal employees into serious question. Congress first passed the WPA in 1978 and strengthened it in 1989 and again in 1994.[77] But then, in 1999, a provocative ruling by a federal court seriously weakened it.
The case involved a civilian employee of the air force, John White, who went public with allegations of gross mismanagement of an educational program by air force officials. A government review board found that White's disclosure deserved whistleblower protection under the terms of WPA, but an appeals court disagreed, finding that White did not have a sufficient basis to believe that mismanagement occurred. In doing so, the court wrote these crucial words redefining the standard that whistleblowers need to meet:
The proper test is this: could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence gross mismanagement? A purely subjective perspective of an employee is not sufficient even if shared by other employees…. This review would start out with a “presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations…. And this presumption stands unless there is ‘irrefragable proof to the contrary.’”[78]
Employee rights groups and whistleblower advocacy groups were justifiably outraged. Pointing to the definition of “irrefragable”—”incontestable, undeniable, incontrovertible”—the Washington-based nonprofit Government Accountability Project said the ruling in LaChance v. White “makes it virtually impossible for a government employee to be legally protected as a whistleblower. It creates a higher standard of proof than securing a criminal conviction, simply to be eligible for protection from retaliation.”[79] Since the ruling (which the Supreme Court declined to hear on appeal), federal employees have prevailed before the board that hears claims for whistleblower protection less than 10 percent of the time.[80] A sizable coalition of groups came together to back legislation in Congress to restore WPA protections (essentially undoing the appeals court ruling).[81] By late 2005 committees in both houses of Congress had approved versions of the bill, but neither chamber had held a floor vote on the matter before the 109th Congress adjourned at the end of 2006.
The bottom line on public employee whistleblowing is that it is a form of expression that is widely protected—except when it's not. Stephen Kohn, board chair of the National Whistleblower Center and author of Concepts and Procedures in Whistleblower Law, starts his book with the observation that during the last half century, “a growing consensus has recognized that whistleblowers positively contribute to society and need protection against retaliation.”[82] He also reminds us that whistleblowing cases are costly and difficult and often leave the individual emotionally bruised and wishing he or she hadn't bothered to come forward. There may be a consensus about the personal virtues of whistleblowers, but the role of courts as interpreters of whistleblowing law means, as the LaChance case amply illustrated, that threats to public employee speech rights are rarely more than a courtroom away.
HATCHING POLITICAL PARTICIPATION
Public employees who choose to become involved in politics in their spare time confront a paradox. On the one hand, many public employees enjoy a form of legal protection for political speech through laws that prevent employers from connecting job rewards or punishments to political activity. On the other hand, a long tradition of legal restrictions governs public employee participation in partisan activities. These restrictions, however, are not as stringent as they once were, leaving many public-sector workers with considerable latitude for political involvement and activism off the job (except, of course, in those jurisdictions where the law restricts latitude).
The protection comes from laws that say that employment outcomes cannot be tied to or made conditional upon an employee's involvement in (or avoidance of) some political activity. Federal workforce rules prohibit coercing another employee into participating in political activity, and it is also against the rules to take action as a reprisal for someone's refusal to engage in political activity.[83] Separately, it's a criminal offense to condition any sort of offer or promise of federal employment on “political activity or for the support of or opposition to any candidate or any political party.”[84] In other words, a government job cannot be linked to political support or a political kickback.
Those rules are examples of efforts to purge the government workplace of political patronage and cronyism—which are essentially forms of compelled political speech—through legislation. The courts have also played a role here through cases in which public employees have challenged dismissals connected to the practice of party-based patronage. In two cases that reached the Supreme Court just a few years apart during the late 1970s, the justices made it clear that the First Amendment is not friendly to the kind of compelled association that patronage firing entails.
The first case grew out of the election of a new sheriff of Cook County, Illinois, a Democrat who was replacing a Republican. Following past practice, non-civil-service employees were expected to either affiliate with the Democratic party, obtain the party's sponsorship, or forfeit their job to party loyalists. This kind of patronage pressure may have been age-old, but a few employees who were losing their jobs because of it decided enough was enough and challenged the system as a violation of their First Amendment rights.
Ultimately, the Supreme Court in 1976 agreed with them, finding in Elrod v. Burns that patronage firings don't just compromise freedoms of belief and association; they also impair the electoral process as a whole.[85] The Court reasoned that as government employment expands, patronage gives the party in power more opportunities to starve the political opposition, tilting the political process toward incumbency in unhealthy ways. Patronage firings are allowable, the Court said, only for employees whose jobs involve confidential, policymaking roles. Interestingly, the Court rejected an argument by the sheriff that patronage firings serve the constructive aim of enhancing efficiency and accountability in delivery of public services. It had only been a few years since the Court took government efficiency into account in creating the balancing test in the landmark Pickering case on employee speech. Here, though, the Court believed that the affront to free expression was compelling and saw no need to weigh it against the notion that government services somehow benefit from firing employees simply because they won't join the boss's political party.
The question of what specific job roles can be subject to patronage firings was at the heart of a second case four years later, in 1980. A newly appointed public defender in Rockland County, New York, a Democrat, gave two assistant public defenders (who were otherwise satisfactory performers) their walking papers because they were Republicans. It sounds like a rerun of the earlier Elrod case, but here the official doing the firing tried to argue that lawyers in a public defender's office need mutual confidence and trust to be effective, making them the kind of employees who are subject to patronage firings. The Supreme Court demurred: The fired assistant public defenders may have had broad authority for their individual assigned cases, but they had little or no operational involvement in management or planning of the office as a whole. The test, said the Court, is “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”[86] In this situation the answer was no.
The Supreme Court in 1990 extended the rule against patronage firing to include not just terminations but also hiring, promotions, transfers, and recalls after layoffs.[87] In taking this long overdue step, the Court rejected the dubious argument that job-related encroachments on free association offend the First Amendment only if they are punitive (firings) but are perfectly okay otherwise. With no small amount of understatement, Justice William Brennan, writing for the Court, called this argument “not credible,” pointing to people who would like to be hired or promoted as clearly harmed by patronage rules when they do not share a party affiliation with the boss.
Political patronage took another hit in 1996 when the Supreme Court extended protection to independent contractors.[88] The city of Northlake, Illinois, kept a list of private companies that on a rotating basis would tow vehicles for the police department. One company, which had been on the list for almost thirty years, was removed after its owner refused to contribute to the mayor's reelection campaign and in fact supported his opponent's campaign. The towing company owner's lawsuit charged that removal from the list was retaliation for political speech and invited the Court to extend the prohibition on patronage “firing” to private contractors who perform municipal services. The Court accepted this invitation, finding no reason to deny contractors the same First Amendment protection against compelled speech and association that employees receive.
Although antipatronage laws do provide public employees with some freedom of political speech, other laws constrain their rights to expression by setting limits on partisan political activity. The best known of these is the federal Hatch Act, enacted in 1939 and named for its author, Senator Carl Hatch of New Mexico. The history of restrictions on government employees' political activity, however, goes a lot further back than that.[89] As early as 1801, Thomas Jefferson noted with disapproval the idea of government officials “taking on various occasions active parts in the elections of public functionaries.” Although Jefferson conceded that officials have the right to vote, he warned that they should not try “to influence the votes of others nor take any part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and [their] duties to it.”[90]
After the Civil War, lawmakers dabbled on several occasions in the creation of rules about financial contributions for political activity. Acts of Congress in 1867, 1868, 1870, and 1876, among others, placed restrictions on the kinds of payments that could be solicited or received by government officials for political purposes.[91] A constitutional challenge to the 1876 measure—which made it a crime for a government employee to give to or receive from any other employee money, property, or anything else of value for political purposes—caught the Supreme Court's attention. In an 1882 ruling the Court found these kinds of restrictions perfectly constitutional as a way to foster “efficiency and integrity in the discharge of official duties” and to protect “those in the public service against unjust exactions.”[92] At that time (and indeed until well into the twentieth century) the Court wasn't much concerned with First Amendment issues. However, a prescient Justice Joseph Bradley offered a spirited dissent that foreshadowed some of the major legal battles over money and political speech that would grab the Court's attention almost a century later. Bradley wrote that laws designed to limit the corrupt use of money in elections were fine, but this one went too far:
To take an interest in public affairs, and to further and promote those principles which are believed to be vital or important to the general welfare, is every citizen's duty…. To deny to a man the privilege of associating and making joint contributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public affairs.[93]
The passage of the Hatch Act in 1939 took restrictions on political activities by public employees to a new level. It prohibited most government employees from taking “any active part in political management or in political campaigns.” A year later the law was extended to include state and local government employees who worked in conjunction with federally funded programs.[94] Under the Hatch Act, federal employees could still contribute money to parties but not collect any funds on behalf of a candidate. They could still attend rallies but not organize one. They could sign nominating petitions but not circulate them.[95]
The Hatch Act in its original form was a draconian measure that seriously impaired rights to engage in political speech for a very large number of people. The act's constitutionality was challenged on multiple occasions, but to no avail. In cases that reached the Supreme Court in 1947 and in 1973, the Court applied the same basic logic it had used back in 1882: the government's interest in delivering public services with efficiency and integrity outweighs any constitutional concerns.[96] In the 1973 case, Justice William O. Douglas picked up the mantle of dissent that Justice Bradley had held ninety years earlier. Like Bradley, Douglas thought that the harmful effects of the law swamped its good intentions: “It is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby—unless what he does impairs efficiency or other facets of the merits of his job.”[97]
In 1993 the Hatch Act was amended—gutted, you might say—to remove most restrictions on involvement in political activity that takes place off the job. As a result, federal employees can now actively manage political campaigns, as long as they do it after work and don't handle the money (the prohibitions on fundraising were not just kept but strengthened).[98] The changes refocused the act on policing abuses and strengthened provisions aimed at discouraging political coercion of employees. The restrictions that remain are mainly geared to keeping partisanship in the operation of government bureaucracy in check by barring political activity while on the job. Many state and local governments, by the way, have written their own statutes addressing limits on political activity by their public employees. These are typically modeled after the federal Hatch Act, and are often referred to as “Little Hatch Acts.”
The laws and court decisions I've been discussing tinker with public employee speech rights as a way to limit corruption in government. One clever (or sinister, depending on your point of view) alternative to an outright ban on speech is to stop people from making money on their expression. This issue of money-for-speech was at the heart of a 1989 ethics-in-government law that barred many federal workers from accepting an honorarium for making a speech or writing an article—on any subject, related to work or not.
Soon after the ban was put in place, a group of federal employees who in the past had received honoraria for expressive activity on such diverse subjects as religion, history, dance, and the environment (in almost all cases wholly unrelated to their jobs) challenged the law as unconstitutional. The Supreme Court agreed, finding the ban to be an unacceptable burden on free speech rights under the First Amendment.[99] The Court used the occasion to impress us all with its bookish erudition by mentioning past luminaries who had held day jobs as federal employees while on the side making significant literary contributions—Nathaniel Hawthorne, Herman Melville, and Walt Whitman, among others. (The Court in citing these examples was perhaps taking a bit of literary license of its own, given that the ban on honoraria exempted books, including works of fiction and poetry, from its coverage.)
How can we synthesize and sum up the state of the law on free expression in the public-sector workplace? The short answer is, not easily: The relevant legal developments over the past fifty years have come at the subject from various angles. Like so much of the law on free speech and other civil liberties, the outcomes of cases involving workplace expression often turn on interpretations of vague and shifting standards, balancing tests designed to weigh competing interests that are inherently subjective, and the ever-changing happenstance of a court's ideological composition at a given time. But I will give it a try nonetheless.
If you are a public employee, you can generally speak your mind away from work on issues that have nothing to do with your job or your workplace without risking reprisal. Assuming your message is wholly unrelated to work, you can publish an article, make a speech, call a radio talk show, or write the great American novel without fearing for your job. And you can even accept payment for your efforts. It doesn't mean that anything goes, however, as the stripper cop from San Diego discovered a few years ago.[100] In fact, courts generally are more sympathetic to employer interests when the employer is a police department, on the theory that law enforcement organizations depend more than most public agencies on maintaining order, discipline, and close working relationships.[101]
If your speech is on a subject that is in some way related to your job or workplace, your speech might be protected if it addresses some social, political, or community issue that a court would say qualifies as a matter of public concern. Then the balancing test kicks in: If the agency you work for can convince a court that your remarks are nontrivially detrimental to its efficiency, discipline, or workplace harmony, then your speech, even though it's on an issue of public interest, loses its protection. If your boss can persuade a court that what looks like a public concern is really just a workplace grievance, then your speech loses its protection. If your boss can persuade a court that your speech, whether on a public concern or not, is a legitimate, required part of the job you were hired to do, then your speech loses its protection.
If the purpose of your speech about work is made for the specific purpose of alerting authorities to illegal activity, unethical behavior, or serious mismanagement, then you are likely to be protected as a whistleblower from retaliation (with the caveat that laws vary from state to state). This protection will be available regardless of the disruption it might cause. Your protection for whistleblowing at the federal level may evaporate, however, if your boss can convince a court that your belief about the wrongdoing falls somewhere short of irrefragable.
If you are at work but speaking about something not related to work (say, the merits of a presidential assassination), the same basic rules apply. If it's on a matter of public concern and nondisruptive, you can't be fired for it even if the message is provocative or even disturbing. If it's on a trivial matter and nondisruptive (say, a critique of last night's ball game), you should be okay because due-process protections should shield you from a termination for arbitrary or trivial reasons.
If your speech is about something that is clearly about your workplace, and even occurs at work but is not a required part of your job, it can be protected from retaliation if it bears on a matter of broader public concern and isn't disruptive. Your speech can be conveyed either in private or in public and still retain its protection. It can contain false or incorrect statements, as long as no malice or reckless disregard for the truth is involved. Courts often (not always, but often) defer to employer judgments about what qualifies as a threat to the agency's mission or a disruption to the workplace, so your battle for the right to make provocative workplace-related remarks may well be an uphill one.
If your speech is, over the boss's objections, protected by the First Amendment (on a public concern, not disruptive, not part of your job), you can still lose your job if the boss can convince a judge that you were saying or doing some other things that aren't protected and you would have been fired for those anyway.
Outside of work you may join any groups you like for political or other purposes, and you cannot be compelled to disclose your memberships as long as they involve no conflicts of interest with your work. Rules governing your political activity vary somewhat from state to state, but as a federal employee, unless you work in a few select agencies, you may be involved in politics in many ways. You can run for office (but only in a nonpartisan contest), manage or participate in a campaign (but not engage in fund-raising or receive contributions), organize an interest group, circulate petitions, and so on—as long as it all happens off duty. A government employer cannot fire you, or refuse to hire or promote you, because of your political activity or party affiliation, unless you are a confidential, policy-making employee, in which case it can.
To sum it up in one sentence: as a public employee you have rights to free expression except when you don't. To say that there is ambiguity and inconsistency in the law, however, is not necessarily to blame the lawyers. The subject lends itself to inherent difficulties in drawing lines. Take this example: The law says that if a public employee speaks about internal workplace matters—say, about how bad office morale is—then the speech is probably not protected because office morale is the stuff of internal politics, not a matter of public concern, and airing it may have a disruptive effect. But what if, hypothetically, that employee speech about office morale is directed to the state legislature, which summoned the employee to ask the question about it? Disruptive speech about an internal workplace problem? Or a matter of public concern?
Okay, it's not hypothetical: a Wisconsin legislative oversight panel in 1991 summoned Cyneth Dahm, the personnel director of the state lottery, to question her about morale problems in the lottery office. Soon after, her boss (the lottery's director) altered Dahm's job responsibilities in ways that she didn't appreciate, so she filed a lawsuit charging retaliation for protected speech. The federal court that reviewed this case said her speech “on its face clearly appears to be on a matter of public concern.”[102] Maybe so, but had Dahm spoken about office morale to a reporter, a court might have called it just airing an internal workplace matter. Discussing it internally with fellow employees would likely not be protected. But her speech was to a legislative panel at their request, and if concern about a public agency's internal affairs by the legislature isn't “public concern,” then it's hard to imagine what is. But wait a minute: The Supreme Court in 2006 said speech isn't protected if it's a required part of your job. By that logic, it's possible that Dahm's remarks about morale to the legislature now merit no protection.
As I said, you have rights to free speech except when you don't.
注释：
[1]Joe Kovacs, “Letter to the Editor Gets Man Fired,” WorldNetDaily, June 18, 2004, (accessed July 31, 2006). The company, the athletic apparel maker Russell Corporation, said the man lost his job not because of his message but for identifying the company when speaking on a personal issue (the letter included a corporate email address, unintentionally, he says). As a private-sector employer, the company could have sacked him for either reason—the content of the letter or the identification of the firm—or for no reason at all.
[2]Pickering v. Board of Education, 391 U.S. 563 (1968).
[3]Alan Freeman and Elizabeth Mensch, “The Public-Private Distinction in American Law and Life,” Buffalo Law Review 36 (1987): 237.
[4]See Tara J. Radin and Patricia H. Werhane, “The Public/Private Distinction and the Political Status of Employment,” American Business Law Journal 34 (1996): 248-249.
[5]Robert P. Stephens, David Langdon, and Brady M. Stephens, “Payroll Employment in 2005: Recovery and Expansion,” Monthly Labor Review, March 2006, 19-22.
[6]McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892), 220.
[7]Connick v. Myers, 461 U.S. 138 (1983), 144.
[8]Adler v. Board of Education, 342 U.S. 485 (1952), 492.
[9]Ibid., 493.
[10]Ibid., 508.
[11]Ibid., 511.
[12]Wieman v. Updegraff, 344 U.S. 183 (1952).
[13]Ibid., 190-191.
[14]Shelton v. Tucker, 364 U.S. 479 (1960), 490.
[15]Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, and Pamela S. Karlan, The First Amendment, 2nd ed. (New York: Aspen, 2003), 467.
[16]Keyishian v. Board of Regents, 385 U.S. 589 (1967), 628-629.
[17]Ibid., 605-606, quoting approvingly an earlier court of appeals ruling in this same matter: Keyishian v. Board of Regents, 345 F.2d 236 (1965), 239.
[18]Paul Ferris Solomon, “The Public Employee's Right of Free Speech: A Proposal for a Fresh Start,” University of Cincinnati Law Review 55 (1986): 452.
[19]Some details of Pickering's situation, including recollections of those involved, are drawn from David L. Hudson Jr., Balancing Act: Public Employees and Free Speech (Nashville, TN: First Amendment Center, 2002), (accessed May 26, 2006).
[20]Pickering v. Board of Education, 391 U.S. 563 (1968), 575-578.
[21]Hudson, Balancing Act, 9.
[22]Pickering v. Board of Education, 391 U.S. 563, 564.
[23]Pickering v. Board of Education, 36 Ill. 2d 568 (1967), 578.
[24]Pickering v. Board of Education, 391 U.S. 563, 568 (emphasis added).
[25]Ibid., 571-572.
[26]Thornhill v. Alabama, 310 U.S. 88 (1940), 102.
[27]For a review of the evolution and breadth of the public concern doctrine, see Cynthia L. Estlund, “Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category,” George Washington Law Review 59 (1990): 1-55.
[28]New York Times Co. v. Sullivan, 376 U.S. 254 (1964), 279-280.
[29]Perry v. Sindermann, 408 U.S. 593 (1972).
[30]Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977).
[31]Doyle v. Mt. Healthy, 670 F.2d 59 (1982).
[32]Michael Wells, “Three Arguments against Mt. Healthy: Tort Theory, Constitutional Torts, and Freedom of Speech,” Mercer Law Review 51 (2000): 598. Wells called Mt. Healthy “among the most important, and least discussed, cases in constitutional tort law” (p. 583) because of its role in defining the motives necessary to justify an adverse employment action. In the area of discrimination, the Civil Rights Act of 1991 replaced Mt. Healthy's “but for” standard with a “motivating factor” standard. Previously, to prove illegal discrimination, a person had to show that he wouldn't have been fired but for his race (or sex or national origin, and so on). Under the new standard, he need only show that race was a motivating factor, even though there might have been other factors. 42 U.S.C. § 2000e-2(m). The new standard created within the Civil Rights Act applied to Title VII violations but not to First Amendment violations.
[33]Ayers v. Western Line Consol. School Dist., 555 F.2d 1309 (1977), 1312.
[34]Ibid., 1319.
[35]Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), 415-416.
[36]Connick v. Myers, 461 U.S. 138 (1983), 141.
[37]Hudson, Balancing Act, 20.
[38]Connick v. Myers.
[39]Ibid., 146.
[40]Ibid., 147-148 (emphasis added).
[41]Ibid., 149.
[42]Ibid., 151-152, 153.
[43]Ibid., 161.
[44]Ibid., 170.
[45]Estlund, “Speech on Matters of Public Concern,” 12.
[46]Connick v. Myers, 143.
[47]Hudson, Balancing Act, 21.
[48]D. Gordon Smith, “Beyond ‘Public Concern’: New Free Speech Standards for Public Employees,” University of Chicago Law Review 57 (1990): 258.
[49]Lawrence Rosenthal, “Permissible Content Discrimination under the First Amendment: The Strange Case of the Public Employee,” Hastings Constitutional Law Quarterly 25 (1998): 557.
[50]McPherson v. Rankin, 786 F.2d 1233 (1986), 1234.
[51]Ibid., 1235.
[52]Ibid., 1236.
[53]Rankin v. McPherson, 483 U.S. 378 (1987), 387.
[54]Ibid., 398.
[55]McPherson v. Rankin, 1238.
[56]Rankin v. McPherson, 393.
[57]Waters v. Churchill, 511 U.S. 661 (1994).
[58]Randy J. Kozel, “Reconceptualizing Public Employee Speech,” Northwestern University Law Review 99 (2005): 1018.
[59]Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).
[60]San Diego v. Roe, 543 U.S. 77 (2004), 83-84.
[61]Roe v. San Diego, 356 F.3d 1108 (2004).
[62]Ibid., 1119-1121.
[63]Ibid., 1123.
[64]Berger and Barhight v. Battaglia, 779 F.2d 992 (1985).
[65]Tindle v. Caudell, 56 F.3d 966 (1995).
[66]Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), 1960.
[67]Ibid., 1965.
[68]Ibid., 1965 n. 2.
[69]Estlund, “Speech on Matters of Public Concern,” 3.
[70]Ibid., 38.
[71]Rosenthal, “Permissible Content Discrimination under the First Amendment,” 544.
[72]Stanley, Ingber, “Rediscovering the Communal Worth of Individual Rights: The First Amendment in Institutional Contexts,” Texas Law Review 69 (1990): 55.
[73]Joseph V. Kaplan and Edward H. Passman, Federal Employees Legal Survival Guide: How To Protect & Enforce Your Job Rights, 2nd ed. (San Francisco: Workplace Fairness, 2004).
[74]Roberta Ann Johnson, Whistleblowing: When It Works—and Why (Boulder, CO: Lynne Rienner, 2003), 4.
[75]False Claims Act, 31 U.S.C. § 3729.
[76]Johnson, Whistleblowing, 9.
[77]Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8).
[78]LaChance v. White, 174 F.3d 1378 (1999), 1381 [quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791 (1993), 795] (emphasis added).
[79]Government Accountability Project, “S. 494-H.R. 1317: Whistleblower Protection Act Amendments,” (accessed May 29, 2006).
[80]Ibid.
[81]H.R. 1317 and S. 494, 109th Congress, THOMAS (Library of Congress), (accessed December 23, 2006).
[82]Stephen M. Kohn, Concepts and Procedures in Whistleblower Law (Westport, CT Quorum, 2001), 1.
[83]5 U.S.C. § 2302(b)(3).
[84]18 U.S.C. § 600.
[85]Elrod v. Burns, 427 U.S. 347 (1976).
[86]Branti v. Finkel, 445 U.S. 507 (1980), 518.
[87]Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
[88]O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996).
[89]My discussion of the history of restrictions on political activities by government employees, including the Hatch Act, draws upon Scott J. Bloch, “The Judgment of History: Faction, Political Machines, and the Hatch Act,” Journal of Labor & Employment Law 7 (2005): 225-277; see also Marcy S. Edwards, Jill Leka, James Baird, and Stefanie Lee Black, Freedom of Speech in the Public Workplace (Chicago: American Bar Association, 1998), 22-26.
[90]James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1897 (1898), cited in Bloch, “The Judgment of History,” 229.
[91]Ex Parte Curtis, 106 U.S. 371 (1882), 373.
[92]Ibid., 373-374.
[93]Ibid., 376-377.
[94]5 U.S.C. § 1501
[95]5 U.S.C. § 7323 and 7324; codified in 5 C.F.R. § 733.103-106.
[96]United Public Workers v. Mitchell, 330 U.S. 75 (1947); United States Civil Service Commission v. Letter Carriers, 413 U.S. 548 (1973).
[97]United States Civil Service Commission v. Letter Carriers, 597.
[98]William E. Reukauf, “Federal Hatch Act Advisory: Retirement of Campaign Debt,” advisory letter, U.S. Office of Special Counsel, February 14, 2001, (accessed May 29, 2006).
[99]United States v. National Treasury Employees Union, 513 U.S. 454 (1995).
[100]San Diego v. Roe, 543 U.S. 77 (2004).
[101]For a review of cases involving speech by police officers, see Edwards et al., Freedom of Speech in the Public Workplace, 135-139.
[102]Dahm v. Flynn, 60 F.3d 253 (1994), 258.
