Thursday, March 12, 2009

Norton on Public Employee Speech

Norton Helen Norton has put on SSRN her article, which will appear in Duke Law Journal, "Constraining Public Employee Speech:  Government's Control of its Workers' Speech to Protect its Own Expression."  The article looks at public employees' free speech claims from a government speech perspective--an increasingly important vantage point.  The abstract:

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims - a shift 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 such speech undermined the governmental employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on - and defer to - government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government to control its employees' expression while at work, characterizing such speech as the government's own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public's ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking "as employees" even when away from work, deferring to government's assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts' reasoning is the premise that a public entity's employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts' unfettered deference to such claims permits government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing an expressive orthodoxy as a condition of public employment.

To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers' First Amendment claims in a growing number of cases that undermine workers' free speech rights as well as the public's interest in transparent government. More careful attention to what it is that government seeks to communicate - and whether that message is actually impaired by employee speech -- can help us capture and accommodate government's expressive interests while providing greater protection for workers. This Article thus proposes a less deferential approach to assessing government's expressive claims, exploring both categorical and contextual frameworks for identifying with greater precision that comparatively small universe of worker speech that actually threatens government's legitimate speech.

Hat Tip:  Paul Secunda


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What a co-incidence that this post follows on the heels of another post, "Nebraska S. Ct. Upholds Vacatur of Arbitration Award Reinstating State Trooper Who Was a Klan Member." Advocates of public-employees' personal free-speech rights tacitly accept that some limits on outside speech are lawful and even welcome. I know and respect Helen Norton, and hope she has divined a principled balance.

My father was in the federal government, in management, and his experience was that "whistleblowers" were sometimes (even commonly) folks who did not reconcile themselves to an executive decision, and continued the fight through other means. This is not to de-legitimize the exercise of First Amendment rights -- or the need for people who spot abuse and fraud to speak out -- but just to say that there is counter to the tendency to view all self-declared "whistleblowers" heroically.

Posted by: Paul Mollica | Mar 13, 2009 8:50:48 AM

I thought you might be interested in this letter written by Army Corps of Engineers whistleblower Bunny Greenhouse, who was retaliated against after she testified to Congress last week. Ms. Greenhouse is calling on all Americans to support whistleblower protection for federal employees. To read her letter go to

Posted by: Lindsey | May 21, 2009 1:53:01 PM

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