Friday, October 31, 2008

Norton Criticizes Garcetti

Norton Helen Norton (Colorado) has just posted on SSRN her essay (forthcoming First Amendment L. Rev.) Government Workers and Government Speech.  Here's an excerpt from the abstract:

[I]n suggesting that any speech pursuant to a public employee's official duties constitutes government speech, the [Garcetti] Court ignored the fact that government speech merits insulation from First Amendment scrutiny only because of its instrumental value in enabling the public to identify and evaluate its government's priorities - and to hold the government politically accountable for those choices. Indeed, the government's political accountability to the electorate for its effectiveness is undercut by the carte blanche Garcetti now gives government to discipline workers who truthfully report irregularities and improprieties pursuant to their official duties. Rather than identifying a theoretically principled approach for capturing the value of empowering government to control its own speech, the Garcetti Court instead formalistically imposed a bright-line rule to avoid the often challenging but entirely commonplace task of balancing constitutional interests.


Public Employment Law, Scholarship | Permalink

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