Rutherglen on Public Employee Free Speech Rights

Of course, this is a topic near and dear to my heart, so it was with great pleasure that I saw that one of the preeminent labor and employment scholar, George Rutherglen of Virginia, has written a piece entitled: Public Employees, Free Expression and the First Amendment.

From the abstract:

This article begins with a brief summary of existing law and the limited protection it accords to employee speech. These limitations are made all the more severe by the remedial framework in which claims of free arise. The general civil rights laws provide public employers with defenses of good faith, causation, and immunity, all of which restrict the effective scope of the remedies available to public employees. The next part turns to the interests invoked in protecting speech, beginning with the employees as “private citizens” and the doubtful role that speech on a matter of “public concern” plays in identifying those interests. Both terms need to be redefined and redeployed so that they can be used distinguish cases which are easy–because they involve no significant interest of the employer as an employer–from those which are relatively hard–because they do. The next part examines the employer’s interests and how they are defined and limited by the employee’s speech, returning to the exact nature of the speech in question in Pickering and Garcetti. This part also examines the transformation of the balancing test from Pickering into the categorical approach taken in Garcetti. Although the latter is more protective of employer interests than employee speech, it still allows courts to intervene to preserve the checking function of employee speech in cases in which it is truly necessary.

The last part offers some specific rules that could be used to clarify the analysis of public employee speech cases. The crucial distinction, as developed earlier, turns on the presence of legitimate interests of the employer. When they are absent, the employee should be treated as a “private citizen” under the usual rules of First Amendment jurisprudence. When they are present, the employee’s protection necessarily is more limited, as it is under whistleblower statutes that protect only complaints about specific forms of workplace misconduct. This result, while perhaps dismaying from a civil liberties perspective, reflects the difficulty of devising general standards for protecting speech at an acceptable cost to the equally general need for management discretion. Progress instead must be made incrementally, by identifying those areas in which the public employees right to speak and the public’s right to know can be protected at an acceptable cost.

Although I would probably go further in rectifying the damage to public employee free speech rights caused by Garcetti, I am pleased to see that George is seeking to bring some doctrinal coherence to this important area of public employment law.

PS