39 Pages Posted: 19 Jun 2015
Date Written: June 17, 2015
The conventional wisdom that public employees enjoy greater rights by virtue of the Constitution may no longer hold true. In recent cases, the Supreme Court has analogized public and private employment, with the effect of eroding the speech and privacy rights of government employees. This essay critically examines this trend, arguing that reliance on an analogy to the private sector is mistaken, because the arguments for giving private employers broad managerial discretion do not apply with the same force, or at all, to government employers. Rights-based arguments do not apply to government agencies, which are publicly-funded to achieve publicly-defined purposes and cannot assert independent rights to property or autonomy to avoid compliance with constitutional norms. Similarly, the claim that market pressures will control overreaching by the private firm has little application. In the private sector, compensation structures and competition for corporate control help to align the incentives of managers with the interests of the firm; however, those mechanisms are largely unavailable in the public sector. Instead, public accountability is key to ensuring that government managers act within the bounds set by the public’s interest. Because public employees stand in a unique position to observe improper government conduct, their constitutional speech and privacy rights should be interpreted, not by reference to market norms, but with an eye to protecting the mechanisms of public accountability.
Keywords: speech, privacy, First Amendment, Fourth Amendment, public employment
Suggested Citation: Suggested Citation
Kim, Pauline T., Market Norms and Constitutional Values in the Government Workplace (June 17, 2015). North Carolina Law Review, Forthcoming; Washington University in St. Louis Legal Studies Research Paper No. 15-06-03. Available at SSRN: https://ssrn.com/abstract=2619837