Permissible Content Discrimination and the First Amendment: The Strange Case of the Public Employee
56 Pages Posted: 11 Sep 2006
The speech of public employees poses special problems under the First Amendment. As Justice O'Connor once explained, a rule that forbids employees who deal with the public from being rude to customers should be permissible in the public sector, even though a statute containing the very same prohibition would be considered impermissibly vague when applied to private-sector employees. Recognizing that a special rule for public employees is necessary, the Supreme Court has held that only when public employees speak on a matter of public concern does their speech qualify for constitutional protection, and even then, the employee's interest must be balanced against that of the employer. This approach, however, is deeply problematic. The public concern test highly subjective and manipulable, it calls for a kind of content and even viewpoint discrimination normally thought impermissible, and the difficulty of applying the public concern and balancing tests create problems of vagueness that themselves pose serious constitutional difficulties. In this article, the author proposes a reformulation of doctrine along the lines that the Supreme Court was cautiously pursuing before it adopted the public concern test - a regulation of public employee speech should be permissible if it is directed at achieving a legitimate managerial prerogative - treating any asserted managerial interest in pursuing ideological conformity with respect to all but the highest-ranking employees as illegtimate - and is not substantially broader than necessary to achieve that interest. This approach would bring public employee speech into harmony with general first amendment doctrine, while recognizing that the swath that should be afforded to public employers to regulate employees' speech is based on the scope of legitimate managerial prerogatives, subject to the First Amendment limitations on compelling ideological conformity in the public workforce.
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