Monday, October 10, 2011
Randy J. Kozel, Notre Dame Law School, has published Free Speech and Parity: A Theory of Public Employee Rights in volume 53 of the William & Mary Law Review (2012). Here is the abstract.
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. It has amassed a substantial body of caselaw grappling with the proper treatment of employee speech under this new analytic regime. Yet the Court has never articulated an adequate theoretical framework to guide its jurisprudence. The result is a doctrine that is problematic in both practical and conceptual terms.
This Article provides a new model for addressing the theoretical deficiency that has persisted for nearly half a century. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a consequence of that rejection, the bare fact of government employment is insufficient to undermine a citizen’s right to free speech. The baseline norm must instead be one of parity between government workers and other citizens. To justify a deviation from the default of parity, there must be a meaningful reason beyond the employment relationship itself for viewing government officials as situated differently from their peers among the general public.
In reorienting the jurisprudence around the legitimate bases for differential treatment of public employees and other citizens, parity theory outfits the modern doctrine with the conceptual grounding it has lacked since its inception. The theory also provides a method for repairing flaws that plague the existing law in its practical application. Perhaps most importantly, parity theory highlights the need to confront a critical factor that has played an unduly limited role in the Supreme Court’s cases to date: the institutional mission of government instrumentalities.
Download the article from SSRN at the link.