PUBLIC EMPLOYEE SPEECH AND MAGARIAN'S DYNAMIC DIVERSITY.

• Author: Kitrosser, Heidi
• Position: Symposium: The Roberts Court's First Amendment

INTRODUCTION

The Supreme Court under Chief Justice John Roberts has been praised in many quarters as a committed ally of free speech. (1) Certainly, a number of Roberts Court decisions do protect speech. Putting aside the Court's controversial campaign finance decisions--the merits of which divide even free speech advocates (2)--the Roberts Court's speech-protective decisions include several cases in which it refused to create new categories of "unprotected" speech, (3) a decision striking a buffer zone around abortion clinics as too restrictive of protests, (4) and a case in which the Court rejected a provision conditioning certain federal funds on recipients' adopting a particular policy position. (5)

While I am mostly very pleased with the Court's speech-protective decisions, (6) I count myself among those who think that the Court has not, on balance, been a champion of free speech. I take this view in light of the vast deference that the Court has accorded the government to suppress speech in several contexts. These include those in which threats to national security are invoked, (7) those in which the government purports to act as a speaker itself, (8) or those in which the government acts in a managerial role, such as employer, (9) jailer, (10) or educator. (11)

This is not a mere matter of tallying free speech wins and losses. My concern is not simply the number of problematic cases, but the importance of the speech that they fail to protect, and the danger of the discretion that they accord the government. For example, Holder v. Humanitarian Law Project (12) impacts core political speech--ranging from the teaching of peaceful international conflict resolution to the writing of amicus briefs to the U.S. Supreme Court--coordinated with a designated foreign terrorist organization (FTO). (13) Despite the FTO label's ominous ring, courts have been highly deferential toward the government's designations, (14) just as the HLP Court was deeply credulous in evaluating Congress' assertions regarding the dangers of coordinated speech. (15) In another pair of cases, the Roberts Court took an expansive view of the speech forums that the government may claim as its own, rather than belonging to the public. (16) In so doing, the Court widened the space--both physical and virtual--in which the government may exclude speakers based on content or even viewpoint. (17)

I am not alone, of course, in noticing the anti-speech tenor of many Roberts Court decisions. Others have observed and lamented this reality, as well as the distance between it and the Roberts Court's reputation as a free speech stalwart. (18) And now, in a terrific new book called Managed Speech: The Roberts Court's First Amendment, Professor Greg Magarian of the Washington University School of Law adds important new insights to the mix. (19) The Roberts Court, Magarian observes, is committed to "managed speech." "Managed speech describes a mode of First Amendment jurisprudence that seeks to reconcile substantial First Amendment protection for expressive freedom with aggressive preservation of social and political stability.... [It] concentrates managerial power over public discussion in the government or in favored private actors." (20) From this perspective, it makes perfect sense for the Roberts Court to fiercely protect the government's ability to control speech within public spaces and government operations. And the Court's many decisions favoring private speakers for the most part can be explained either as bolstering powerful interests or as very narrowly applying, extending, or qualifying precedent. (21) In contrast to managed speech, Magarian supports an approach that he calls "dynamic diversity," which "seeks to maximize ... diversity of ideas" and diversity of speakers in public discussion. (22) We should value dynamic diversity, he explains, because it protects free speech's role as "an engine of political and social change." (23) "Dissent lies at the heart of dynamic diversity." (24)

In this Article--prepared for a symposium to honor Professor Magarian's book--I use the concepts of dynamic diversity and managed speech as jumping off points to consider the constitutional value of speech produced by public employees in the course of doing their jobs ("public employee work product speech") and the Roberts Court's approach to the same. In Part I, I posit that, despite dynamic diversity's repeated emphasis on public discourse, its underlying reasoning contains the seeds of strong support for the notion that public employee work product speech--including that conveyed internally--is of high First Amendment value. This is so for two reasons. First, much public employee work product speech does impact public discourse directly or indirectly. Second, even purely internal work product speech serves the ultimate end toward which dynamic diversity aims: "challenging stable institutions and testing new ideas." (25) Indeed, there is little more effective way to bake dialogic challenge into the production of government ideas and actions than by placing expert career employees throughout the government and granting them some protection for their on-the-job speech. This conclusion is also buttressed by dynamic diversity's emphasis on the value and vulnerability of political dissent. First Amendment protections for work product speech also fittingly complement the structural checking mechanisms that the Constitution builds into the federal system. In Part II of the Article, I critique the approaches that the Roberts Court has taken to public employee work product speech, including its assessments of the speech's value and of the government's interests in controlling it. In making these critiques, I draw from the insights of Part I and from Professor Magarian's concept of managed speech.

1. DYNAMIC DIVERSITY AND THE FIRST AMENDMENT VALUE OF PUBLIC EMPLOYEE WORK PRODUCT SPEECH

   As Professor Magarian explains it, dynamic diversity values public discussion predominantly because it is the "primary medium for challenging stable institutions and testing new ideas.... Action toward change can't happen without speech. At the same time, speech is relatively safe. It lets us hedge our bets at the margin where change challenges stability." (26)

   Public discourse can only serve as a conduit for change when a diversity of speakers and ideas participate. Speech that dissents from conventional wisdom, presenting listeners with new information and perspectives, is especially valuable in this respect. Such speech also is highly vulnerable, given the challenge that it poses to the status quo. (27) Political dissent, in particular, is at heightened risk of government suppression. (28) Political dissent "stands at the center of ... dynamic diversity," for both its high value and its susceptibility to repression. (29)

   In championing diversity of both speakers and ideas, and emphasizing the importance of political dissent, Magarian widens the scope of existing, democratic governance-based theories of free speech in important ways. First, Magarian acknowledges that his theory is more inclusive than the self-governance theory of Alexander Meiklejohn, insofar as Meiklejohn favored diversity of ideas but not speakers. Indeed, Meiklejohn famously deemed it '"essential ... not that everyone shall speak but that everything worth saying shall be said.'" (30) Magarian responds that speaker and idea diversity generally "complement one another," and that "[e]nabling broad-based participation in public debate should generate a wide range of ideas." (31) Second, in strongly valuing political dissent, dynamic diversity complements Vincent Blasi's important work stressing the value of free speech for "checking the abuse of power by public officials." (32) Yet dynamic diversity encompasses much more than abuse-checking speech insofar as it aims for a robust public discourse that includes a wide range of dissenters as well as the ideas and information with which they grapple. Third, Magarian combines his analyses of affirmative speech values with a healthy dose of government distrust, echoing Frederick Schauer's insight that all major free speech theories rightly share a core skepticism about government control of speech. (33) Indeed, Magarian repeatedly cites the heightened susceptibility of dissent to repression, given powerful actors'--including government's--investments in the status quo. (34)

   Yet while dynamic diversity effectively justifies protections for a broad range of political dissent and much other speech, less clear are its implications for at least one important category of political speech: that made by public employees in the course of doing their jobs. As it stands, dynamic diversity's emphasis on public discourse makes it a somewhat counter-intuitive tool for defending public employee speech that is conveyed through internal channels. Work product speech is often, albeit not always, conveyed internally, as with internal memoranda or consultations. Magarian anticipates and addresses this point by citing Blasi's work on the checking value of speech, and explaining that "public employees can ... perform the checking function within the government workplace." (35) This analysis does not tell us, however, whether dynamic diversity, in its own right, can support protecting internal workplace speech.

   Yet despite dynamic diversity's repeated emphasis on public discourse, its underlying reasoning contains the seeds of strong support for the notion that public employee work product speech--including that conveyed internally--is of high First Amendment value. This is so for at least two reasons. First, much work product speech does make its way into public discourse either directly or indirectly. And a close look at the types of work product speech that are likely to trigger discipline reveals the ways in which such speech can manifest political dissent. Insofar as workplace...