• 19 October 2009

Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression

Helen Norton - University of Colorado School of Law

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Government increasingly claims the power to control its employees’ expression to protect its own speech, a trend 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 the speech undermined the government employer’s interest in efficiently providing public services. In contrast, courts now increasingly defer to governmental claims to control its employees’ expression, concluding that workers’ on-duty speech should be considered the government’s own expression and that employees’ off-duty speech unacceptably undermines the government’s ability to communicate its own views. Taken together, these trends signal a key doctrinal shift that leads to the rejection of public employees’ free speech claims in a growing range of cases, threatening key First Amendment values.

To be sure, the government and the public share a substantial interest in the government’s own speech. Government speech valuably furthers citizens’ capacity to participate in democratic self-governance by enabling them to identify and assess their government’s priorities and performance. Consider, for example, the insights into government policymaking provided to the public during the Vietnam War by the Pentagon Papers and, more recently, by the Department of Justice’s legal memoranda outlining the Bush administration’s views on the scope of executive power in the war on terrorism. Government expression thus carries great instrumental value because of what it offers its audience: information that furthers the public’s ability to evaluate its government.

Because government speech is so important to a thriving democracy, the constitutional standards for evaluating government’s control of its own speech differ dramatically from those that apply to government regulation of private expression. On one hand, government cannot discriminate on the basis of viewpoint when regulating private speech unless its action satisfies strict scrutiny. On the other, government’s own expression is exempt from free speech clause scrutiny, leaving the government generally free to adopt and deliver whatever message it chooses when it speaks on its own behalf. Those unhappy with their government’s expressive choices can seek recourse through political accountability measures like lobbying or voting, rather than through First Amendment litigation.

Focusing on the purposes underlying the government speech doctrine, however, reveals that courts too often permit government to claim control over employee speech that does not actually undermine its own expression. Courts’ deference in this area effectively works as a bludgeon against public employee speech when a scalpel offers a better tool for parsing government’s legitimate expressive interests. More careful attention to what it is that government actually seeks to express can help accommodate those interests while providing greater protection for workers’ own free speech rights and the public’s interest in transparent government.

Matching First Amendment Doctrine to Government’s Expressive Interest in Its Workers’ On-Duty Speech

Once one recognizes the value of government speech that facilitates citizens’ ability to evaluate their government and its priorities, one should understand the First Amendment to permit government to claim and control only the speech of those public employees that it has specifically hired to deliver a particular government viewpoint. This is the case, for example, when a health department hires an employee to implement an antismoking campaign, when a school board hires an antivoucher lobbyist, or when a mayor commissions a muralist to create patriotic art. These are examples of government speech that expose the government’s expressive choices, thus enabling the public to take any accountability measures they desire. And because that speech is valuable to the public, the First Amendment should permit government to protect that viewpoint from being garbled—for example, by disciplining an employee who was hired to deliver the government’s views but who nevertheless speaks in a way that undermines that message.

This approach, however, describes a much smaller slice of public employee speech than does the test recently established by the Supreme Court in Garcetti v. Ceballos. Garcetti involved a First Amendment challenge by a prosecutor disciplined for his internal memorandum criticizing a police department affidavit as including serious misrepresentations. The Court held that the First Amendment does not protect public employees’ speech made “pursuant to their official duties,” concluding that a government employer should remain free to “exercise . . . employer control over what the employer itself has commissioned or created.” The Court thus created a bright-line rule that treats public employees’ speech delivered pursuant to their official duties as the government’s own speech for which it paid—in other words, speech that the government may control free from First Amendment scrutiny.

The Court’s decision characterizes any speech pursuant to a public employee’s official duties as the government’s own speech. This distorted understanding of government speech overstates government’s communicative claims to its employees’ on-duty speech while undermining the public interest in speech that facilitates voters’ ability to evaluate their government. To be sure, the public’s interest in what the prosecutor in Garcetti had to say did not diminish because he uttered certain views pursuant to his official duties. Indeed, public entities frequently hire workers not to deliver a particular government message but to flag dangerous or illegal conditions—yet Garcetti empowers the government to punish them for delivering just “what the employer itself has commissioned.” Lower courts now routinely apply Garcetti to dispose of First Amendment claims of police officers, teachers, health care workers, and other public employees punished for making accurate, on-the-job reports of safety hazards, ethical improprieties, and illegal behavior. In short, rather than identifying a theoretically principled approach for capturing the value created by empowering government to control its own speech, Garcetti instead formalistically imposed a bright-line rule that avoids the often-challenging but entirely commonplace task of balancing constitutional interests.

Matching First Amendment Doctrine to Government’s Expressive Interest in Its Workers’ Off-Duty Speech

Courts also increasingly consider government employees to be speaking as employees even when away from work. Examples include firefighters discharged for participating in a holiday parade that featured mocking racist stereotypes, a university vice president disciplined for writing a newspaper column questioning gay rights, and police officers fired for their involvement with sexually explicit websites. In these cases, the government argued neither that the off-duty speech occurred pursuant to the plaintiff’s official duties and is thus unprotected under Garcetti nor that the off-duty speech harmed that employee’s own job performance. Instead, courts increasingly defer to government’s assertion that its association with employees who engage in certain off-duty expression undermines its ability to communicate its own views.

To be sure, government’s expressive interests in at least some of these cases are substantial—such as police departments’ interest in credibly communicating their commitment to evenhanded law enforcement regardless of race. Yet courts’ unconstrained deference to these contentions would permit government agencies to fire workers for any off-duty speech to which the public might object. Indeed, absent any limiting principles, certain individuals may be unemployable for many government jobs purely because of their unpopular or controversial off-duty expression—for example, marching in a gay pride parade or blogging for or against abortion rights or immigration reform. Although there may well be times when government should be permitted to control the off-duty speech of its workers, such as when that speech imperils its own expression, attention to First Amendment values suggests that these circumstances should be rare and well examined. Less deferential approaches that identify with greater precision those threats to government’s expressive interests that are sufficiently strong to justify controlling public employees’ off-duty speech are preferable.

A categorical approach would permit the government to claim as its own—and thus control exempt from free speech clause scrutiny—only the speech of those government workers who serve as the voice or the face of the government such that even their off-duty speech cannot be dissociated from that of their employer. This test treats workers in certain positions as so identified with the government that they can never escape their governmental role to speak purely as private citizens even when technically off the job. To be sure, this is—or should be—a relatively small number of government jobs. Examples might include the off-duty speech of employees in certain political positions who are hired to represent the views of legislators or other officials. Law enforcement officers also likely fall into a category of “quintessential public servants” because their agencies depend so heavily on public trust and cooperation for their effectiveness.

The advantages and disadvantages of this approach include those of any bright-line rule. On one hand, it is relatively predictable and easy to apply, and thus communicates clear expectations to employers and employees alike. For example, law enforcement agencies could simply control the off-duty speech of police officers across the board; police officers would then know to adjust their expression accordingly. The off-duty speech of employees who do not fall in the category of inescapably public servants, in contrast, would remain protected.

On the other hand, the predictability and comparative administrative ease offered by a bright-line approach must be weighed against its rigidity:  we must have confidence that we have identified the right categories of employees to be treated as unable to escape their roles as government employees for First Amendment purposes. A categorical rule, moreover, gives employers a great deal of control over the employees who fall within that category—control that may be unwise and unfair. Indeed, under this rule, often-underpaid police officers would face greater speech restrictions than other public employees.

Another possibility is a more flexible contextual approach that recognizes that employees’ off-duty speech occurs in a wide range of situations that vary in their capacity to threaten government’s expressive interests. Rather than assuming that the off-duty speech of employees in certain jobs—but only in those jobs—necessarily undermines government’s own expression, a contextual standard would instead require the government to prove such a threat on a case-by-case basis.

Among the strongest factors to be considered in this inquiry should be a government worker’s deliberate choice to link employment to off-duty speech, thus leading the public to make this association as well. This was the case, for example, in San Diego v. Roe, a recent Supreme Court case in which a police officer was fired for his sexually explicit website that included a video of himself stripping off a police uniform and masturbating. Government’s fears that the public will associate the worker’s off-duty expression with the government are especially reasonable in these cases because the employee has made that association explicit. An employee’s off-duty speech that does not explicitly refer to a government employer, in contrast, would be less likely to undermine the government’s expressive interests.

Observers may similarly be less likely to attribute the speech of employees whose positions do not require policymaking or extensive public interaction to the agency that employs them. Government’s showing would be considerably stronger—although perhaps not dispositive—when the plaintiff is in a leadership position or a position that requires significant public trust and interaction such that the public may reasonably believe that the employee represents the government’s views. Also relevant to this inquiry is the content of the contested speech and whether it conflicts with the government’s transparently claimed views. Attention to these factors recognizes that certain combinations of an employee’s position and her expression’s content pose greater expressive threats to government than others. A police department seeking to communicate that “We enforce the law without regard to race” may be considerably less believable when it employs officers who march in Klan parades. But not all controversial messages delivered by off-duty officers pose that sort of threat to the agency’s own transparently articulated views. Applying this principle, for example, a court might well permit a police department to punish an officer’s off-duty participation in a Klan parade but not in a Martin Luther King, Jr. Day celebration (or a peace rally or gay pride parade) because of the different threats this speech poses to the government’s communication of its own views.

But drawing these distinctions requires that one be particularly confident of government’s and courts’ ability to sort the damaging effects of speech by content—an inquiry that can be difficult and uncomfortable. The flexibility of a multifactor contextual standard inevitably invites charges that it is too difficult to apply and will generate unacceptably unpredictable results.

For an illustration of how the choice between a categorical and contextual approach may lead to different outcomes, consider the differing opinions in Pappas v. Giuliani. There, the plaintiff police officer brought a First Amendment challenge to his discharge for mailing anonymous racist materials to nonprofit organizations that had sent him fundraising solicitations. The Second Circuit majority essentially adopted what I have called a categorical approach, characterizing the police officer’s speech as inevitably associated with the views of his department, regardless of context:

For a New York City police officer to disseminate leaflets that trumpet bigoted messages expressing hostility to Jews, ridiculing African Americans and attributing to them a criminal disposition to rape, robbery, and murder, tends to promote the view among New York’s citizenry that those are the opinions of New York’s police officers. The capacity of such statements to damage the effectiveness of the police department in the community is immense.

Then-Judge Sotomayor’s dissent, in contrast, focused on the specific factual context of the officer’s speech, noting that his job at a computer station involved neither policymaking nor public contact, that his speech made no reference to his employment in law enforcement, and indeed that his speech was intended to be private and anonymous. Under those circumstances, she found no legitimate threat to the department’s public image or to its credibility in communicating a commitment to racial evenhandedness.

Although there may be no completely satisfying solution, I find both the categorical approach and the flexible contextual approach to be preferable to the status quo, which is far too deferential to government’s claimed expressive interests. On balance, the contextual approach better comports with my sense that the threat posed to government’s expressive interests varies significantly with the context of an employee’s off-duty speech even within certain categories of employees closely identified with their governmental roles. To be sure, a contextual approach still makes for hard cases. But one of my hopes is that courts will understand these as hard cases, rather than creating bright-line rules that obviate the need to engage in the challenging task of attending to multiple, and sometimes competing, interests. By paying more careful attention to whether public employees’ speech actually threatens the government’s legitimate expressive interests, those interests may be accommodated while providing greater protection to the public’s interest in transparent government and government workers’ free speech rights.dingbat


Copyright © 2009 Duke Law Journal.

Helen Norton is Associate Professor at University of Colorado School of Law.

This Legal Workshop Editorial is based on the following full-length Article: Helen Norton, Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 DUKE L.J. 1 (2009).

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