Employee Speech Rights (Public)

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The freedom of speech rights of public employees have evolved from simplicity to complexity. Late nineteenth and early twentieth century judges thought public officials could require citizens to surrender their constitutional rights in order to obtain or continue receiving government benefits or government jobs. "The petitioner may have a constitutional right to talk politics," Justice oliver wendell holmes, jr. , famously declared inMcAuliffe v. Mayor of New Bedford (1892), "but he has no constitutional right to be a policeman." McAuliffe and other cases allowed public employees to be fired for criticizing their departments, because "[t]he servant … takes the employment on the terms which are offered him."

This rule did not survive the coming of the welfare state, where most Americans depended on some government benefit and many held government jobs. The Supreme Court during the second half of the century sensibly rejected both McAuliffe and the hard distinction between constitutional rights and mere state privileges that had enabled public officials to trade state benefits for constitutional liberty. Public employees first gained a measure of freedom when in wieman v. updegraff (1952) the Justices unanimously agreed that persons who belonged to "innocent" political organizations could not be banned from state jobs. Sixteen years later, the Justices extended this ruling and laid down vague guidelines for determining when public employees could speak without fear of losing their jobs. Justice thurgood marshall in Pickering v. Board of Education of Will County, Illinois (1968) declared that the official constitutional standard required "a balance between the interests of the [public employee], 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."

The general rules governing the free-speech rights of public employees seem fairly libertarian at first glance. Judicial opinions celebrate the contribution such public employees as Nathaniel Hawthorne and Herman Melville have made to public discourse, and constitutional protection has been extended, in Board of Commissioners v. Wabaunsee County v. Umbehr (1996), to private contractors who do business with the state. The burger court struck a blow at traditional patronage practices, ruling in Elrod v. Burns (1976) and Branti v. Fishel (1980) that public employees could not be hired or fired simply on the basis of their political affiliations, unless "party affiliation is an appropriate requirement for the effective performance of the public office involved." Although the Justices have sustained measures forbidding political campaigning by public employees, the Court in united states v. national treasury employees union (1995) declared unconstitutional as applied to civil servants below the level of GS-16 a 1989 statute barring all federal employees from accepting any compensation for outside speeches or articles.

When actually applied on a case-by-case basis, however, the Pickering guidelines have strongly favored public employers. The Justices in Connick v. Myers (1983) narrowly defined matters of public concern when ruling that an assistant district attorney could be fired for complaining about working conditions in her department. Several years later, in waters v. churchill (1994), the Justices held that public employees could be constitutionally fired on the basis of what their supervisors erroneously thought they said, even though their actual statements may have been constitutionally protected. The opinion of Justice sandra day o'connor in that case emphasized that courts should generally defer to government claims concerning what restrictions on speech were necessary to the efficient operation of public services.

Waters and other recent cases may indicate that public employees have free-speech rights only when a government attorney foolishly asserts that the Constitution does not give that employee any rights. Whenever public employers give more particularized reasons as to why a particular speech warrants termination, the first amendment as construed by the rehnquist court is not likely to be very protective of the free-speech rights of public employees. In the latter half of the 1990s, the Justices may begin their opinions by highlighting the value of speech by public employees; however, maintaining the efficiency of the public workplace as defined by public employers remains the more important value.

Mark A. Graber

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Employee Speech Rights (Public)

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