Public Employee Speech and the Privatization of the First Amendment

71 Pages Posted: 18 Mar 2013 Last revised: 12 Dec 2013

Adam Shinar

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: March 18, 2013

Abstract

Constitutional protection of public employee speech has been declining for the past forty years, yet the reason for the decline has remained elusive. This article puts forward a novel theory situating public employee speech in larger structural transformations in governmental organization. It identifies a “public/private convergence,” the main feature of which is that public officials are increasingly viewed as private employees, resulting in a significant erosion of their free speech rights. This erosion is exacerbated by rising levels of privatization and civil service reforms exhibiting the same mode of thought, that public employees are no different from private employees. These trends have far reaching First Amendment implications that up until now have remained largely unexplored.

Against this background, the article argues that the privatization of public employee speech doctrine should be reconsidered for three main reasons. First, it overlooks the ways in which the public sector does not operate like the market. Second, it risks eroding the unique norms and culture the civil service aims to foster. Finally, it undermines a system of internal checks on state power that are especially important given the reduction in external monitoring capacity. Accordingly, the article proposes two directions for reform: a doctrinal framework that resolves the problems with the Court’s current position, and a new governance framework that relies on internal regulatory channels to encourage public employee voice.

Keywords: First Amendment, Public Employee Speech, Privatization, Civil Service Reforms

Suggested Citation

Shinar, Adam, Public Employee Speech and the Privatization of the First Amendment (March 18, 2013). 46 Connecticut Law Review 1 (2013). Available at SSRN: https://ssrn.com/abstract=2235337

Adam Shinar (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

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