On the Road to Garcetti: 'Unpick'erring Pickering and its Progeny

AuthorJoseph O. Oluwole
PositionAssistant Professor, Montclair State University
Pages967-1027
ON THE ROAD TO GARCETTI:
‘UNPICK’ERRING PICKERING AND ITS PROGENY
JOSEPH O. OLUWOLE
INTRODUCTION
In this Article, the author examines the foundational cases dealing with
public employment-free speech rights and the evolution of the United
States Supreme Court’s public employment-free speech jurisprudence. It
is essential to look at all the cases in the Court’s public employment-free
speech jurisprudence in order to fully understand the constitutional status
of the free speech rights of public employees who whistleblow, as each
case in the jurisprudence builds on the other. In each case since Pickering
v. Board of Education1—the seminal case on public employment-free
speech jurisprudence—the Court has attempted to navigate and clarify the
nuances of the Pickering balancing test—the balancing of the employee’s
free speech rights against the public employer’s interests in operational
efficiency.2
This Article reveals through comprehensive examination of these cases
that the Court, in its interpretation of the Pickering balancing test
established to protect employees, has steadily taken away sub silentio the
protection of public employees’ free speech rights to the pro-employer era
that reigned mostly pre-Pickering. The Court has done this by chipping
away at employee protections in the balancing test or gradually but
incrementally giving greater weight in the balancing test to employers.
This review also reveals that the Court’s attempts to define protected
public employee speech within the Pickering balancing test has obfuscated
and made for a convoluted and congested public employment-free speech
jurisprudence teeming with tests upon tests for different aspects of the
Pickering balancing tests. As esteemed constitutional law scholar Gerald
Copyright © 2008, Joseph Oluwole.
Assistant Professor, Montclair State University. Dr. Oluwole has published several
articles and regularly presents at national conferences and symposia. He has also served as
Assistant Attorney General for the State of Ohio.
The author would like to thank Jeff Sneeringer and Shannon Leis for their invaluable
and sedulous help with this Article. Thanks also go to the editors, reviewers and editorial
board members of the Capital University Law Review for their excellent work.
1 391 U.S. 563 (1968).
2 Id. at 568.
968 CAPITAL UNIVERSITY LAW REVIEW [36:967
Gunther notes, however, in interpreting and applying balancing tests, “the
single most important trait for responsible balancing [is] the capacity to
identify and evaluate separately each analytically distinct ingredient of the
contending interests.”3
I. FOUNDATIONAL CASES—RECOGNIZING PUBLIC EMPLOYEES
FREE SPEECH
Prior to 1952, the United States Supreme Court’s jurisprudence on the
free speech rights of employees was firmly established: public employers
could place any limitation, including constitutional limitations, on the
conditions of employment of any employee, as public employment was a
privilege and not a right.4
Justice Oliver Wendell Holmes’s now famous aphorism, aptly captures
the Supreme Court’s pre-1952 public employment-free speech
jurisprudence: “The petitioner may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman.”5 Justice
Holmes reasoned that in instances of public employment, an employee is
bound by the implied terms of his contract of employment to suspend the
right to free speech because he takes the employment solely on the
employer’s terms.6 The ominous imperative to employees was simple: to
retain the right of free speech, do not take a government job; any public
employee who exercises the right of free speech as a public employee must
be prepared for the consequences, including termination, without
constitutional remedy. Constitutional scholars have referred to this as the
“rights versus privileges” distinction.7 Under the “rights versus privileges”
3 Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A
Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 7 (1972) (emphasis added)
(internal quotes omitted).
4 McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517–18 (Mass. 1892).
5 Id. at 517.
6 Id. at 517–18.
7 This “rights versus privileges” distinction has since been abandoned by constitutional
scholars:
[T]he [United States Supreme] Court and most legal scholars have
disregarded this theory, favoring the “unconstitutional conditions”
doctrine instead. Within this framework, a citizen’s basic constitutional
rights—including his First Amendment rights of freedom of speech,
freedom of association, and free exercise—are not sacrificed when the
citizen becomes an employee of the state.
(continued)
2008] PICKERING AND ITS PROGENY 969
perspective, public employment was viewed as a privilege, not a right; a
corollary this perspective held was that as a condition of holding the
privilege to public employment, public employees waived their rights to
free speech with respect to their employers.8
In fact, in what typified its absolute pro-employer position at the time,
in Adler v. Board of Education,9 the Supreme Court stated: “It is . . . clear
that [citizens] have no right to work for the State in the school system on
their own terms.”10 The Court went on to state that citizens
may work for the school system upon the reasonable terms
laid down by the proper authorities. . . . If they do not
choose to work on such terms, they are at liberty to take
their beliefs and associations and go elsewhere. Has the
State thus deprived them of any right to free speech . . . ?
We think not.11
This aptly embodies the import of the “rights versus privileges” distinction.
In a case decided in the next Supreme Court term, Wieman v.
Updegraff,12 public employees got their first breakthrough in the Supreme
Court’s public employment-free speech jurisprudence. For the first time,
the Supreme Court restricted the power of public employers to limit, as a
condition of employment, employees’ First Amendment rights. In that
case, at issue was an Oklahoma statute which required public employees to
swear loyalty oaths, within the statutorily permitted period, as a
qualification for employment.13 In extending First Amendment protection
to public employees, the Court held that “constitutional protection does
extend to the public servant whose exclusion pursuant to a statute is
patently arbitrary or discriminatory.”14 While Wieman’s protection was
Brian Richards, Comment, The Boundaries of Religious Speech in the Government
Workplace, 1 U. PA. J. LAB. & EMP. L. 745, 757–58 (1998). See also generally WILLIAM
W. VAN ALSTYNE, THE AMERICAN FIRST AMENDMENT IN THE TWENTY-FIRST CENTURY:
CASES AND MATERIALS (3d ed. 2001).
8 Richards, supra note 7, at 757.
9 342 U.S. 485 (1952).
10 Id. at 492.
11 Id.
12 344 U.S. 183 (1952).
13 Id. at 185.
14 Id. at 192. Referring to its language, quoted above, in Adler, the Court stated:
To draw from this language the facile generalization that there is no
constitutionally protected right to public employment is to obscure the
(continued)

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