• 07 May 2012

Free Speech and Parity: A Theory of Public Employee Rights

Randy J. Kozel

I.

Determining the First Amendment rights of public employees represents one facet of a larger jurisprudential difficulty created by the application of a sovereign-oriented Constitution to government instrumentalities that regularly operate through nonsovereign means. The familiar yet vexing question is how the customary panoply of speech protections should be adapted to the employment context, in which public institutions enlist citizens to pursue strategic operational objectives.

During the middle of the twentieth century, the U.S. Supreme Court expressly abandoned its former position that because citizens lack any entitlement to public employment, they also lack grounds for challenging employment conditions as unconstitutional. The intervening years have seen the Court struggling to balance the importance of employer efficiency against the individual and public benefits of free expression.1

The Court, however, has never fully confronted the implications of its reversal of course. In declaring that citizens retain First Amendment rights against their government employers, the Court established a conceptual baseline of parity between employees and nonemployees. In order to overcome the presumption of parity and impose a restriction on public employees that would be unlawful if applied to other citizens, the government may not rest on the mere existence of the employment relationship. Rather, departing from parity requires a meaningful reason beyond the employment relationship itself for viewing public officials as situated differently than their peers who do not work for the government.

II.

Parity-based thinking is not entirely foreign to the existing jurisprudence of employee speech. Speech made in discharge of an employee’s official responsibilities currently receives no constitutional protection from employer control.2 The underlying notion is that if the speaker were not employed by the government, and if he were not tasked with certain communications as part of his official duties, his expressions would not have come into existence in the first place.

That causal origination overcomes the presumption of parity, authorizing the government to treat the speaker differently than a nonemployee. A similar analysis would apply to a public employee’s rude or vulgar speech to customers. Though citizens have the right to speak coarsely in conducting their private lives, an employee’s professional interactions with patrons are derivative of and unique to the employment context. Government employers may legitimately exert control over the shape of those exchanges without violating the norm of parity. The converse is that when employees “make public statements outside the course of performing their official duties,” the prospect of First Amendment protection arises because “that is the kind of activity engaged in by citizens who do not work for the government.”3

III.

In contrast to the rules regarding speech in the discharge of official duties, some critical elements of employee-speech doctrine cannot be squared with the parity norm.

For starters, the Supreme Court has crafted a threshold inquiry that generally forecloses the possibility of constitutional protection unless an employee’s speech bears on a matter of public concern.4 Yet citizens who do not work for the government commonly speak with full protection on private matters that have no plausible claim to public-concern status. There is no legitimate basis for differential treatment of those citizens relative to their peers who work for the government. If private-concern speech is worthy of constitutional solicitude in the ordinary course, so, too, should it be deemed valuable when the speaker happens to be a government employee.

The modern doctrine’s central balancing test, which focuses on the competing values of unfettered expression and governmental efficiency, is equally problematic when viewed through the lens of parity. Within the universe of the First Amendment, listener disapproval seldom provides a valid basis for restricting speech. This principle extends to speech that is uncivil, upsetting, and offensive. Indeed, protecting speech that provokes vehement opposition is sometimes described as the highest purpose of the First Amendment. The individual’s right to express herself in her own terms provides part of the rationale for this view, as does the potential utility of even extreme or troubling viewpoints in contributing to the marketplace of ideas.

The employee-speech balancing test assumes a markedly different posture. Through its contemplation of scenarios in which the disruption caused by speech can provide a lawful basis for workplace discipline, the balancing test can be understood as constitutionalizing a “heckler’s veto” for controversial expressions.5 Speech that generates strong criticism from listeners is disruptive by definition, and avoiding disruption is a leading reason the Court has offered for permitting the restriction of employee speech.

A related problem stems from the modern doctrine’s paramount focus on operational efficiency. Though the Court has acknowledged that “[t]he government cannot restrict the speech of the public at large just in the name of efficiency,”6 it has departed from this principle in the employment context.7 The promotion of efficiency, however, does not provide an adequate basis for categorically distinguishing between employees and other citizens. Nonemployee speakers can and do create serious public disruptions and inefficiencies. The First Amendment’s customary response is that the government must tolerate these consequences in service of both individual liberty and a general climate of robust discourse.

The analysis might be different if public employees possessed a systematically greater ability to undermine efficiency relative to their nonemployee peers. I see little reason to suspect this is true as a universal matter. A public schoolteacher’s letter to the local newspaper expressing his views about school funding and tax policy might affect his employer by inviting public scrutiny, but the same could be said of letters from other concerned citizens who do not work for the government. A clerical worker’s critical statements about the President might sow discord within her workplace and exact a toll on institutional efficiency, but efficiency costs also arise when the government must strive to maintain order during a public speech by a controversial figure. Tumult is an unavoidable—and, some would say, vital—byproduct of the First Amendment. A mere preference for smooth operations should be no more capable of trumping citizen-speech by public employees than it is for the citizenry at large.

IV.

Stepping back, the most powerful basis for distinction between the government’s respective roles as sovereign and employer arises from the relevance of institutional mission. The very existence of government employers with specified operational missions implies the license for a certain amount of control over employee expression. If a public elementary school is to educate its students, it must be empowered to reprimand a teacher who, harboring a sincere belief that state-run education is the epitome of illegitimate governmental overreaching, sits silently at his desk in a showing of somber protest. Less fancifully, the same school must possess the authority to oversee the teacher’s presentation of curricular materials, even at the expense of his expressive liberty. A teacher retains the right to talk politics in his personal life, but he can be forbidden from doing so when he is supposed to be instructing his students about long division.

The schoolteacher example serves as a useful starting point for exploring the relevance of institutional mission to the constitutional calculus. Yet a teacher’s conduct inside the classroom is best understood as involving the discharge of official responsibilities, and we have already seen that such speech is subject to broad managerial discretion under a parity-based approach. The more difficult question is whether, under a parity-based model of speech protection, promotion of institutional mission can authorize an employer to restrict speech made outside the scope of professional responsibilities in an employee’s capacity as a citizen.

It seems to me that the answer is yes. The explanation owes to the evidentiary value of speech. An employee who makes a statement relevant to his employer’s mission does more than introduce an expressive utterance into the world of ideas. He also provides evidence that may reveal something about his workplace performance. The government ordinarily has no occasion to draw performance-related inferences from the speech of its citizens. But when the speaker is a government worker, his employer should be allowed to react to statements that cast doubt on his fitness for duty—just as the employer is free to react to other indicators of performance, such as workplace productivity. The Constitution does not require that an employee’s words be disregarded for purposes of evaluating his suitability and aptitude.

Some inferences about fitness for employment will be relatively uniform across different institutions. All government employers must be free to react to employee speech that demonstrates functional incompetence to perform assigned tasks. The government “as an abstraction could not penalize any citizen for misunderstanding the views of Karl Marx … but a Department of Political Science can and should show such a person the door,”8 even if the confusion was revealed through statements outside the employee’s professional duties. We might imagine a similar line of analysis for speech that suggests a tendency toward detrimental workplace conduct. When an employee posts on his personal webpage that “[e]veryone in [his] office is underpaid and entitled to steal what he can,”9 his employer should be permitted to infer that the employee is unfit for government work without waiting for corroborating evidence in the form of actual theft. Perhaps the inference is misguided, and the employee is actually a dedicated and productive official who was just blowing off steam after a particularly grueling day. But making that determination should be committed to the discretion of the employer, who is better positioned than the courts to determine the appropriate conclusion to be drawn from the employee’s statement. For First Amendment purposes, the salient point is that the employee’s speech meaningfully sets him apart from his fellow citizens, who owe no support to his employer’s institutional mission. The presumption of parity is overcome.

Raising the prospect of discipline based on an employee’s aptitude and fitness makes it imperative to identify effective constraints on managerial discretion; too capacious a conception of institutional mission could lead to undue interference with “employees’ freedom to believe and associate.”10 Parity-based thinking provides a framework for constructing appropriate safeguards. A government employer may prefer that its employees always refrain, even when off the clock, from criticizing the President, commenting on divisive social issues, or using foul language. But the government does not receive so broad a mandate simply by assuming its employer role. What makes the government-as-employer different from the government-as-sovereign is the former’s authorization to enlist citizens in pursuit of specified institutional objectives. Only when an employee’s speech casts doubt on his willingness or ability to promote those objectives does the presumption of parity yield.

Concerns about viewpoint discrimination and ideological coercion are pervasive in the case law on free speech, and they must be taken seriously. So, too, must the related principle that citizens generally should be secure in thoughts and beliefs that are not manifested in unlawful or detrimental action. One might draw on these considerations to argue that even an employee whose off-the-clock speech contradicts his employer’s mission should be protected from discipline unless there is some other evidence to cast doubt on his fitness. As noted, however, a government employee is situated differently from other citizens on matters of institutional mission. Inherent in the existence of goal-driven government institutions is the authority to ensure satisfactory employee performance in pursuit of legitimate institutional objectives. The managerial assessments necessary to evaluate professional performance may encompass an employee’s words as well as his acts; both provide relevant evidence of his likely contribution to the employer’s pursuits. When an employee’s utterances suggest a lack of commitment to the mission he was hired to assist in promoting, his employer should not be forced to search for additional evidence of a performance problem whose existence it can already reasonably infer.

V.

Given the importance that parity theory ascribes to institutional mission, it is fair to ask whether assessing an employer’s mission is the sort of undertaking properly committed to the judiciary. For the reasons expressed, and despite the analytical challenges, I view the inquiry into mission as an unavoidable element of adjudicating employee-speech disputes under the First Amendment.

But in the event that one perceives such matters as beyond the competence of the courts, intermediate options are available. Courts might afford some degree of deference to an institution’s own, good-faith description of its mission. Alternatively, courts might take a “least common denominator” approach by paring the institutional mission down to its core: for a school, the presentation of curricular materials but not the promotion of any ideological beliefs; for a police department, the evenhanded enforcement of the laws but not the promotion of societal perceptions regarding the qualities of law enforcement officers; and so on. Neither of these alternatives is perfect. The former risks allowing too much employer control over speech while the latter raises the opposite concern. Still, either approach would enhance the doctrine’s theoretical coherence relative to the status quo by preserving the essential link between institutional mission and the scope of permissible restraints on expression.

VI.

The presumption of parity implied by the rejection of the once-dominant Holmesian approach provides a new framework for public-employee speech jurisprudence. Parity theory suggests the need to rethink the centrality of both the public-concern requirement and the disruptive consequences of speech. At the same time, it pushes the existing doctrine toward a more deliberate engagement with the evidentiary function of speech as bearing on an employee’s suitability and fitness for government work. The dimensions of this mission-centric approach are nuanced and complex. Nevertheless, though the focus on institutional mission is not likely to make employee-speech cases any easier in the short run, it affords a more promising conceptual starting point for guiding the doctrine’s development.

Acknowledgements:

Randy J. Kozel is an Associate Professor of Law at Notre Dame Law School.

A version of this article will appear in the May 2012 issue of the William and Mary Law Review.

Copyright © 2012 William and Mary Law Review.

  1. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
  2. See Garcetti v. Ceballos, 547 U.S. 410 (2006).
  3. Id. at 423.
  4. See Connick v. Myers, 461 U.S. 138, 146 (1983).
  5. See Randy J. Kozel, Reconceptualizing Public Employee Speech, 99 Nw. U. L. Rev. 1007, 1019 (2005).
  6. Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality opinion).
  7. See id.
  8. Feldman v. Ho, 171 F.3d 494, 496 (7th Cir. 1999) (quoting Feldman v. Bahn, 12 F.3d 730, 732-33 (1993)).
  9. Wales v. Bd. of Educ., 120 F.3d 82, 85 (7th Cir. 1997) (internal quotation marks omitted).
  10. Rutan v. Republican Party of Ill., 497 U.S. 62, 76 (1990).

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