Government Employee Speech and Forum Analysis

Abstract

This Article analyzes the institution of government employment as a nonpublic forum. Forum analysis offers a framework for bringing the doctrine of government employee speech into alignment with broader First Amendment principles. It also sharpens the theoretical contours of employee speech law by underscoring the need for vigilance against ordained orthodoxy while acknowledging the necessity of managerial discretion over institutional operations. Characterizing government employment as a nonpublic forum circumvents problematic questions like whether employee speech has provoked an adverse reaction. The proper inquiry, in the employment context as in other nonpublic forums, is whether a speech restriction is reasonable and viewpoint neutral.

Note: This is an Accepted Manuscript of an article published in the Journal of Free Speech Law originally available online at: https://www.journaloffreespeechlaw.org/kozel.pdf

Keywords: freedom of speech, first amendment, public employment, government employees, constitutional law