Free Speech and Parity: A Theory of Public Employee Rights
William & Mary Law Review, Vol. 53, p. 1985, 2012
57 Pages Posted: 2 Sep 2011 Last revised: 17 May 2012
Date Written: September 1, 2011
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. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence.
This Article suggests a conceptual reorientation of the modern doctrine. 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 result of that rejection, the bare fact of government employment is insufficient to undermine a citizen’s right to free speech. The baseline norm is instead 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 reframing the jurisprudence around the legitimate bases for differential treatment of public employees and other citizens, parity theory outfits the modern doctrine with a firmer conceptual grounding. The theory also provides a method for addressing flaws that plague the existing law in its practical application. Perhaps most importantly, parity theory highlights a critical factor that has played an unduly limited role in the cases to date: the institutional mission of government instrumentalities.
Keywords: constitutional law, freedom of speech, first amendment
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