Helen Norton

Abstract

This Article identifies a key doctrinal shift in courts' treatment Of public employees' First Amendment claims-a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on-and defer to-government's claim to control its workers' expression to protect its own speech. More specifically, courts increasingly permit government to control its employees' expression at work, characterizing this speech as the government's own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public's ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking as employees even when away from work, deferring to the government's assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts' reasoning is the premise that a public entity's employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts' unfettered deference to such claims would permit government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing orthodox expression as a condition of public employment. To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers' First Amendment claims in a growing number of cases that undermine workers' free speech rights as well as the public's interest in transparent government. Because of this shift's normatively troubling implications, this Article proposes a new constitutional framework for public employee speech cases that attends more carefully to what it is that government seeks to communicate and whether that message is actually impaired by employee speech. It thus proposes a less deferential approach to assessing government's expressive claims to its workers' speech both on and off the job, exploring both categorical and contextual frameworks for identifying more precisely the comparatively small universe of workers' speech that actually threatens government's own expression.

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