The Solomon Amendment, Expressive Associations, and Public Employment
49 Pages Posted: 25 Nov 2006
Employment law commentators have paid insufficient attention to the Solomon Amendment case of Rumsfeld v. FAIR and its discussion of the right to expressive association under the First Amendment. By failing to methodically analyze whether all law school constituents of the FAIR organization constitute expressive associations, the Court erroneously implied that both public and private law school members of FAIR may be expressive associations. This state of affairs will eventually be rectified given the strong constitutional structural arguments in opposition to such an interpretation. But such a modification should be accompanied by a unifying theory about how government efficiency concerns in maintaining core values and promoting certain messages should be balanced against the First Amendment rights of public employees to engage in protected constitutional activities. This article fashions a coherent constitutional analysis for these public employment law cases by utilizing the Pickering framework and limiting the application of the Ceballos government speech doctrine. This analysis discards the notion that the government employer has a constitutional right as an expressive association to disassociate itself from those it deems are promoting an antithetical message, focusing instead on whether the constitutional right of the public employee can be recognized without substantially disrupting the public employer's enterprise.
Keywords: expressive associations, public employment, Solomon Amendment, FAIR v. Rumsfeld, Garcetti v. Ceballos, Pickering, First Amendment
JEL Classification: H11, J45, J79, K31
Suggested Citation: Suggested Citation