Free speech and parity: a theory of public employee rights.

• Author: Kozel, Randy J.

ABSTRACT

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence.

This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court's rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the bare fact of government employment is insufficient to undermine a citizen's right to free speech. The baseline norm is instead one of parity between government workers and other citizens. To justify a deviation from the default of parity, there must be a meaningful reason beyond the employment relationship itself for viewing government officials as situated differently from their peers among the general public.

In reframing the jurisprudence around the legitimate bases for differential treatment of public employees and other citizens, parity theory outfits the modern doctrine with a firmer conceptual grounding. The theory also provides a method for addressing flaws that plague the existing law in its practical application. Perhaps most importantly, parity theory highlights a critical factor that has played an unduly limited role in the cases to date: the institutional mission of government instrumentalities.

TABLE OF CONTENTS INTRODUCTION I. THE EMPLOYEE-SPEECH CONTINUUM A. Speaking as an Employee B. Speaking as a Citizen 1. The Public Concern Requirement 2. The Pickering Balance C. Synthesis II. THE HOLMESIAN REJECTION AND THE NEED FOR AN ALTERNATIVE FRAMEWORK III. A PARITY-BASED THEORY OF EMPLOYEE SPEECH A. The Parity Touchstone B. Parity in the Modern Law IV. PARITY AND DOCTRINAL REFORM A. Rethinking Public Concern B. Balancing, Disruption, and Listener Reaction C. Institutional Mission and Expression as Evidence D. Extra-Employment Speech CONCLUSION INTRODUCTION

During the middle of the twentieth century, in the wake of impassioned debates over the conflicting threats posed by Communist ideology and governmental efforts to suppress it, the United States Supreme Court reset the First Amendment rights of the public workforce. The Court expressly abandoned its former position that because citizens lack any entitlement to public employment, they also lack grounds for challenging employment conditions as unconstitutional. (1) In so doing, it created space for a new theoretical framework to emerge.

The passage of time has made the treatment of public employee speech all the more significant. The vast scope of government within the modern American economy has magnified the impact of selecting one rule of decision over another. (2) And the technology-fueled melding of the personal and professional spheres has heightened both the stakes and the degree of difficulty. (3) All the while, the doctrine of public employee speech has remained stunted. The Supreme Court has fleshed out certain elements of its jurisprudence and amassed a growing body of case law, (4) but its project has been minimalist, nibbling around the conceptual margins. The Court has yet to resolve the single most important issue raised by its doctrinal overhaul: if it is incorrect to view public employees as relinquishing their First Amendment rights by virtue of their employment, what is the correct theoretical alternative?

In rejecting the position that government workers possess no First Amendment rights against their employers--a position captured in Holmes' famous statement that a policeman has a right to "talk politics," but not to "We a policeman" (5) the Court created a theoretical void. With the Holmesian model discarded, an acute need arose for a new framework to guide the doctrine's evolution. Rather than developing such a framework, however, the Court became enmeshed in a troublesome balancing test directed at the various costs and benefits of restricting speech. (6) More than forty years ago, the Court announced that the purpose of employee-speech law is to promote free expression while authorizing restrictions when efficiency so demands. (7) The ensuing decades have witnessed the construction of a multi-faceted doctrinal edifice around that refrain, with less attention paid to how the refrain itself coheres with First Amendment principles. (8)

This is not to suggest the Court has been silent about the doctrine's theoretical moorings. Most often, it has noted that when the government acts as an employer, interests such as operational efficiency carry added sway, (9) reflecting the overarching theme that First Amendment ideals must be imposed with regard for the "practical realities of government employment." (10) Notwithstanding their superficial appeal, statements like these require unpacking before their premises can be accepted. There must be some explanation of why the government's desire to operate efficiently can consistently trump the free-speech rights of a government employee but not the rights of her peers among the general citizenry. There also must be some justification for permitting the firing of a government employee based on the provocative nature of his speech, notwithstanding the bedrock principle that audience disapproval is not a legitimate basis for suppressing expression. More generally, the overarching question is why First Amendment ideals should bend to the practical realities of the government workplace rather than vice versa. In this respect, the complexity surrounding public-employee speech represents one facet of a larger jurisprudential difficulty created by the application of a sovereign-oriented Constitution to entities that frequently operate through nonsovereign means.

This Article suggests a conceptual reorientation aimed at addressing these issues. The proposal flows from the Court's emphatic rejection of the Holmesian approach to employee rights. As a result of that rejection, the bare fact of government employment is no longer sufficient to impair the exercise of a citizen's right to free speech. The baseline norm must instead be one of parity between government workers and other citizens. In order to deviate from the presumption of parity and impose a restriction on public employees that would be unlawful if applied to other citizens, the government may not rest on the mere existence of the employment relationship. That approach accompanied the Holmesian model to the ash heap. Nor may the government rely on operational disruption and audience reaction without providing a rational account of why those considerations--which are commonly trumped by the virtues of expressive liberty in the ordinary course of First Amendment adjudication-are infused with unique potency when applied to public workers. Overcoming the norm of parity requires a meaningful reason beyond the employment relationship itself for viewing public officials as situated differently than their peers.

In reframing the jurisprudence around the bases for differential treatment of those who do and do not work for the government, parity theory provides a method for addressing structural flaws in the existing law. Most notable is the Supreme Court's driving focus on operational efficiency and the disruptive consequences of employee speech. In the post-Holmesian world, it is improper to privilege efficiency interests at the expense of free speech simply because the institutional context has shifted from government-as-sovereign to government-as-employer. Likewise, the modern doctrine's implicit acceptance of a "heckler's veto" (11)--which withdraws constitutional protection from speech that is likely to provoke fervent opposition is problematic as a matter of First Amendment principle. At the same time, the parity touchstone demonstrates the validity of certain elements of existing law, namely the treatment of speech made in the discharge of an employee's official duties.

Perhaps the most critical lesson of parity theory is the need to confront a factor that has played an unduly limited role in the cases to date: the institutional mission of government instrumentalities. Assessing employee speech through the lens of parity suggests that an employee is situated differently from his peers, and thus legitimately subject to restriction, when his speech contradicts his employer's institutional mission. In such cases, the employee's statement provides an evidentiary basis for doubting his ability or willingness to contribute to the employer's essential reason for existence. Equally important, the parity-based approach demonstrates that an employer should not have license to discipline employees for speech outside its institutional mission simply because that speech reflects controversial views or provokes a heated public response. By redirecting the analysis of employee speech from operational disruption and audience reaction to institutional mission and fitness for government employ, parity theory outfits the employee-speech doctrine with a firmer conceptual grounding.

This Article begins in Part I by analyzing the operation of the modern doctrine of employee speech before contending in Part II that the doctrine remains undertheorized. In Part III, the Article describes the parity-based theory of employee speech as the most natural successor to the Court's previous approach. Part IV then addresses the ramifications of parity theory for the modern doctrine, including an emphasis on institutional mission and the evidentiary value of speech.

One methodological point is in order. This Article does not engage the predicate question of whether the Court's rejection of the Holmesian approach was proper. It assumes arguendo that the Court was correct in determining that the acceptance...