Reconceptualizing Public Employee Speech

Abstract

I argue in this article that modern public employee speech doctrine is fundamentally flawed, and that a more coherent theory of employee speech can be derived by analyzing the once-dominant Holmesian model. My central aim in resurrecting the Holmesian approach is, ultimately, to take it back apart, but to do so in a manner that will prove constructive to our thinking about public employee speech doctrine. The project of this article is essentially to ask the long-ignored question of why the Holmesian model is unsatisfying, and to rely on that answer to begin fashioning a new model of public employee speech to displace the theoretically and functionally problematic balancing approach that dominates the modern jurisprudence.

I go on to propose such a model, which I call the internal/external model. It can be described roughly (and with a few exceptions) as affording full protection to employee speech that occurs outside the workplace and is directed at audiences broader than the workplace audience, while affording no protection to employee speech that occurs inside the workplace or is directed solely at workplace audiences. I argue that the internal/external model responds to the various employment market failures, informational asymmetries, and bargaining power disparities that render the Holmesian model undesirable, and that it reflects the proper ex ante balance between the value of government employees' speech and the need for public employers to exert control over their workplaces. I thus suggest that the internal/external model provides a useful starting point for thinking about how to reconceptualize and reform public employee speech doctrine.