Significant Silences: Freedom of Speech in the Public Sector Workplace
77 Pages Posted: 25 Mar 2015
Date Written: March 23, 2015
This Article describes the United States Supreme Court's past and current approach to public employee speech. The discussion shows that public employees have little enforceable freedom of speech at work. The Supreme Court has fashioned a test for public employee speech under which courts defer broadly-often decisively-to the government employer's need for disciplinary discretion. Current law holds that public employers cannot condition public employment on the surrender of first amendment freedoms. Employers can, however, regulate employee speech at work. The first amendment does not apply to an employee's work-related speech unless it involves a "matter of public concern." Even speech that does involve a matter of public concern can be restricted if the employer perceives that it may disrupt the workplace. The combined effect of these requirements is that much public employee speech receives no first amendment protection.
The Article challenges the Court's approach to public employee speech on several grounds. It agrees with the view of several writers that the "matter of public concern" restriction is vague and overly restrictive. It also criticizes the Court's deference to a public employer's mere anticipation of disruption as grounds for employee discipline, because this affords inadequate protection to the employee's interest in free expression.
Keywords: public employee speech, freedom of speech, disciplinary discretion, regulation of speech
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