Particular Governmental Regulations That Restrict Expression

Particular Governmental Regulations That Restrict Expression

Government adopts and enforces many measures that are designed to further a valid interest but that may restrict freedom of expression. As an employer, government is interested in attaining and maintaining full production from its employees in a harmonious environment. As enforcer of the democratic method of selecting public officials, it is interested in outlawing “corrupt practices” and promoting a fair and smoothly-functioning electoral process. As regulator of economic affairs, its interests are extensive. As educator, it desires to impart knowledge and training to the young with as little distraction as possible. All of these interests may be achieved with some restriction upon expression, but if the regulation goes too far expression may be abridged and the regulation will fail.660

660 Highly relevant in this and subsequent sections dealing with governmental incidental restraints upon expression is the distinction the Court has drawn between content-based and content-neutral regulations, a distinction designed to ferret out those regulations that indeed serve other valid governmental interests from those that in fact are imposed because of the content of the expression reached. Compare Police Department v. Mosley, 408 U.S. 92 (1972); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); and Schacht v. United States, 398 U.S. 58 (1970), with Greer v. Spock, 424 U.S. 828 (1976); Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973); and United States v. O'Brien, 391 U.S. 367 (1968). Content-based regulations are subjected to strict scrutiny, while content-neutral regulations are not.

Government as Employer: Political and Other Outside Activities.—Abolition of the “spoils system” in federal employment brought with it consequent restrictions upon political activities by federal employees. In 1876, federal employees were prohibited from requesting from, giving to, or receiving from any other federal employee money for political purposes, and the Civil Service Act of 1883 more broadly forbade civil service employees to use their official authority or influence to coerce political action of any person or to interfere with elections.661 By the Hatch Act, federal employees, and many state employees as well, are forbidden to “take any active part in political management or in political campaigns.”662 As applied through the regulations and rulings of the Office of Personnel Management, formerly the Civil Service Commission, the Act prevents employees from running for public office, distributing campaign literature, playing an active role at political meetings, circulating nomination petitions, attending a political convention except as a spectator, publishing a letter soliciting votes for a candidate, and all similar activity.663 The question is whether government, which may not prohibit citizens in general from engaging in these activities, may nonetheless so control the off-duty activities of its own employees.

In United Public Workers v. Mitchell,664 the Court answered in the affirmative. While the Court refused to consider the claims of persons who had not yet engaged in forbidden political activities, it ruled against a mechanical employee of the Mint who had done so. The Court’s opinion, by Justice Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights,665 but it placed its decision upon the established principle that no right is absolute. The standard by which the Court judged the validity of the permissible impairment of First Amendment rights, however, was a due process standard of reasonableness.666 Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell.667 But a divided Court, reaffirming Mitchell, sustained the Act’s limitations upon political activity against a range of First Amendment challenges.668 It emphasized that the interest of the Government in forbidding partisan political activities by its employees was so substantial that it overrode the rights of those employees to engage in political activities and association;669 therefore, a statute that barred in plain language a long list of activities would clearly be valid.670 The issue in Letter Carriers, however, was whether the language that Congress had enacted, forbidding employees to take “an active part in political management or in political campaigns,”671 was unconstitutional on its face, either because the statute was too imprecise to allow government employees to determine what was forbidden and what was permitted, or because the statute swept in under its coverage conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. With respect to vagueness, plaintiffs contended and the lower court had held that the quoted proscription was inadequate to provide sufficient guidance and that the only further elucidation Congress had provided was to enact that the forbidden activities were the same activities that the Commission had as of 1940, and reaching back to1883, “determined are at the time of the passage of this act prohibited on the part of employees . . . by the provisions of the civil-service rules....”672 This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.

661 19 Stat. 143, § 6, 18 U.S.C. §§ 602-03, sustained in Ex parte Curtis, 106 U.S. 371 (1882); 22 Stat. 403, as amended, 5 U.S.C. § 7323.

662 53 Stat. 1147 § 9(a), (1939), as amended, 5 U.S.C. § 7324(a)(2). By 54 Stat. 767 (1940), as amended, 5 U.S.C. §§ 1501-08, the restrictions on political activity were extended to state and local governmental employees working in programs financed in whole or in part with federal funds. This provision was sustained against federalism challenges in Oklahoma v. Civil Service Comm'n, 330 U.S. 127 (1947). All the States have adopted laws patterned on the Hatch Act. See Broadrick v. Oklahoma, 413 U.S. 601, 604 (1973).

663 The Commission on Political Activity of Government Personnel, Findings and Recommendations 11, 19-24 (Washington: 1968).

664 330 U.S. 75, 94-104 (1947). The decision was 4-to-3, with Justice Frankfurter joining the Court on the merits only after arguing that the Court lacked jurisdiction.

665 330 U.S. at 94-95.

666 330 U.S. at 101-02.

667 The Act was held unconstitutional by a divided three-judge district court. National Ass'n of Letter Carriers v. Civil Service Comm'n, 346 F. Supp. 578 (D.D.C. 1972).

668 Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973). In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Court refused to consider overbreadth attacks on a state statute of much greater coverage because the plaintiffs had engaged in conduct that the statute clearly could constitutionally proscribe.

669 The interests the Court recognized as served by the proscription on partisan activities were (1) the interest in the efficient and fair operation of governmental activities and the appearance of such operation, (2) the interest in fair elections, and (3) the interest in protecting employees from improper political influences. 413 U.S. at 557-67.

670 413 U.S. at 556.

671 413 U.S. at 554, 570 n.17.

672 413 U.S. at 570 n.17.

The Court held, on the contrary, that Congress had intended to confine the Commission to the boundaries of its rulings as of 1940 but had further intended the Commission by a process of case-by-case adjudication to flesh out the prohibition and to give content to it. That the Commission had done. It had regularly summarized in understandable terms the rules which it applied, and it was authorized as well to issue advisory opinions to employees uncertain of the propriety of contemplated conduct. “[T]here are limitations in the English language with respect to being both specific and manageably brief,” said the Court, but it thought the prohibitions as elaborated in Commission regulations and rulings were “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interests.”673 There were conflicts, the Court conceded, between some of the things forbidden and some of the protected expressive activities, but these were at most marginal. Thus, some conduct arguably protected did under some circumstances so partake of partisan activities as to be properly proscribable. But the Court would not invalidate the entire statute for this degree of overbreadth.674 More recently, in Bush v. Lucas675 the Court held that the civil service laws and regulations are sufficiently “elaborate [and] comprehensive” to afford federal employees an adequate remedy for deprivation of First Amendment rights as a result of disciplinary actions by supervisors, and that therefore there is no need to create an additional judicial remedy for the constitutional violation.

673 413 U.S. at 578-79.

674 413 U.S. at 580-81.

675 462 U.S. 367 (1983).

The Hatch Act cases were distinguished in United States v. National Treasury Employees Union,676 in which the Court struck down an honoraria ban as applied to lower-level employees of the Federal Government. The honoraria ban suppressed employees’ right to free expression while the Hatch Act sought to protect that right, and also there was no evidence of improprieties in acceptance of honoraria by members of the plaintiff class of federal employees.677 The Court emphasized further difficulties with the “crudely crafted” honoraria ban: it was limited to expressive activities and had no application to other sources of outside income, it applied when neither the subjects of speeches and articles nor the persons or groups paying for them bore any connection to the employee’s job responsibilities, and it exempted a “series” of speeches or articles without also exempting individual articles and speeches. These “anomalies” led the Court to conclude that the “speculative benefits” of the ban were insufficient to justify the burdens it imposed on expressive activities.678

676 513 U.S. 454 (1995).

677 The plaintiff class consisted of all Executive Branch employees below grade GS-16. Also covered by the ban were senior executives, Members of Congress, and other federal officers, but the possibility of improprieties by these groups did not justify application of the ban to “the vast rank and file of federal employees below grade GS-16.”

678 513 U.S. at 477.

Government as Employer: Free Expression Generally.— Change has occurred in many contexts, in the main with regard to state and local employees and with regard to varying restrictions placed upon such employees. Foremost among the changes has been the general disregarding of the “right-privilege” distinction. Application of that distinction to the public employment context was epitomized in the famous sentence of Justice Holmes': “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”679 The Supreme Court embraced this application in the early 1950s, first affirming a lower court decision by equally divided vote,680 and soon after applying the distinction itself. Upholding a prohibition on employment as teachers of persons who advocated the desirability of overthrowing the government, the Court declared that “[i]t is clear that such persons have the right under our law to assemble, speak, think and believe as they will.... It is equally clear that they have no right to work for the state in the school system on their own terms. They may work for the school system under reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.”681

The same year, however, saw the express rejection of the right-privilege doctrine in another loyalty case. Voiding a loyalty oath requirement conditioned on mere membership in suspect organizations, the Court reasoned that the interest of public employees in being free of such an imposition was substantial. “There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy.... [W]e need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.”682 The premise here - that, if removal or rejection injures one in some fashion, he is therefore entitled to raise constitutional claims against the dismissal or rejection - has faded in subsequent cases; the rationale now is that, while government may deny employment, or any benefit for that matter, for any number of reasons, it may not deny employment or other benefits on a basis that infringes that person’s constitutionally protected interests. “For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ . . . Such interference with constitutional rights is impermissible.”683

679 McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892).

680 Bailey v. Richardson, 182 F. 2d 46, 59 (D.C. Cir. 1950), aff'd by an equally divided Court, 341 U.S. 918 (1951). The appeals court majority, upholding the dismissal of a government employee against due process and First Amendment claims, asserted that “the plain hard fact is that so far as the Constitution is concerned there is no prohibition against the dismissal of Government employees because of their political beliefs, activities or affiliations.... The First Amendment guarantees free speech and assembly, but it does not guarantee Government employ.” Although the Supreme Court issued no opinion in Bailey, several Justices touched on the issues in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). Justices Douglas and Jackson in separate opinions rejected the privilege doctrine as applied by the lower court in Bailey. Id. at 180, 185. Justice Black had previously rejected the doctrine in United Public Workers v. Mitchell, 330 U.S. 75, 105 (1947) (dissenting opinion).

681 Adler v. Board of Education, 342 U.S. 458, 492-93 (1952). Justices Douglas and Black dissented, again rejecting the privilege doctrine. Id. at 508. Justice Frankfurter, who dissented on other grounds, had previously rejected the doctrine in another case, Garner v. Board of Public Works, 341 U.S. 716, 725 (1951) (concurring in part and dissenting in part).

682 Wieman v. Updegraff, 344 U.S. 183, 190-91, 192 (1952). Some earlier cases had used a somewhat qualified statement of the privilege. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947); Garner v. Board of Public Works, 341 U.S. 716, 722 (1951).

683 Perry v. Sindermann, 408 U.S. 593, 597 (1972). In a companion case, the Court noted that the privilege basis for the appeals court’s due process holding in Bailey “has been thoroughly undermined in the ensuing years.” Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). The test now in due process and other such cases is whether government has conferred a property right in employment which it must respect, but the inquiry when it is alleged that an employee has been penalized for the assertion of a constitutional right is that stated in the text. A finding, however, that protected expression or conduct played a substantial part in the decision to dismiss or punish does not conclude the case; the employer may show by a preponderance of the evidence that the same decision would have been reached in the absence of the protected expression or conduct. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979). See discussion infra under “The Interests Protected: Entitlements and Positivist Recognition.”

However, the fact that government does not have carte blanche in dealing with the constitutional rights of its employees does not mean it has no power at all. “[I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”684 Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reflecting on the administration of the school system. The letter also contained several factual errors. “The problem in any case,” Justice Marshall wrote for the Court, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”685 The Court laid down no general standard, but undertook a suggestive analysis. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day-to-day personal contact, that problems of discipline or of harmony among coworkers, or problems of personal loyalty and confidence, would arise.686 The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reflected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions that the community should be aware of. “In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”687

684 Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,688 sustained the constitutionality of a provision of federal law authorizing removal or suspension without pay of an employee “for such cause as will promote the efficiency of the service” when the “cause” cited concerned speech by the employee. He had charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, “is without doubt intended to authorize dismissal for speech as well as other conduct.” But, recurring to its Letter Carriers analysis,689 it noted that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statutory enactment all the myriad situations that arise in the course of employment, and inasmuch as the language used was informed by developed principles of agency adjudication coupled with a procedure for obtaining legal counsel from the agency on the interpretation of the law.690 Neither was the language overbroad, continued the Court, because it “proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the Government as an employer.... We hold that the language ’such cause as will promote the efficiency of the service’ in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad.”691

685 391 U.S. at 568.

686 391 U.S. at 568-70. Contrast Connick v. Myers, 461 U.S. 138 (1983), where Pickering was distinguished on the basis that the employee, an assistant district attorney, worked in an environment where a close personal relationship involving loyalty and harmony was important. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Id. at 151-52.

687 391 U.S. at 570-73. Pickering was extended to private communications of an employee’s views to the employer in Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), although the Court recognized that different considerations might arise in context. That is, with respect to public speech, content may be determinative in weighing impairment of the government’s interests, whereas with private speech, manner, time, and place of delivery may be as or more important. Id. at 415 n.4. As discussed below, however, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that there is no First Amendment protection at all for government employees when they make statements pursuant to their official duties.

688 416 U.S. 134 (1974). The quoted language is from 5 U.S.C. § 7501(a).

689 Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 578- 79 (1973).

690 Arnett v. Kennedy, 416 U.S. 134, 158-64 (1974).

691 416 U.S. at 162. In dissent, Justice Marshall argued: “The Court’s answer is no answer at all. To accept this response is functionally to eliminate overbreadth from the First Amendment lexicon. No statute can reach and punish constitutionally protected speech. The majority has not given the statute a limiting construction but merely repeated the obvious.” Id. at 229.

Pickering was distinguished in Connick v. Myers,692 involving what the Court characterized in the main as an employee grievance rather than an effort to inform the public on a matter of public concern. The employee, an assistant district attorney involved in a dispute with her supervisor over transfer to a different section, was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale. This firing the Court found permissible. “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”693 Whether an employee’s speech addresses a matter of public concern, the Court indicated, must be determined not only by its content, but also by its form and context.694 Because one aspect of the employee’s speech did raise matters of public concern, Connick also applied Pickering’s balancing test, holding that “a wide degree of deference is appropriate” when “close working relationships” between employer and employee are involved.695 The issue of public concern is not only a threshold inquiry, but under Connick still figures in the balancing of interests: “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression” and its importance to the public.696

692 461 U.S. 138 (1983).

693 461 U.S. at 146. Connick was a 5-4 decision, with Justice White’s opinion of the Court being joined by Chief Justice Burger and Justices Powell, Rehnquist, and O'Connor. Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, dissented, arguing that information concerning morale at an important government office is a matter of public concern, and that the Court extended too much deference to the employer’s judgment as to disruptive effect. Id. at 163-65.

694 461 U.S. at 147-48. Justice Brennan objected to this introduction of context, admittedly of interest in balancing interests, into the threshold issue of public concern.

695 461 U.S. at 151-52.

696 461 U.S. at 150. The Court explained that “a stronger showing [of interference with governmental interests] may be necessary if the employee’s speech more substantially involve[s] matters of public concern.” Id. at 152.

On the other hand, the Court has indicated that an employee’s speech may be protected as relating to matters of public concern even in the absence of any effort or intent to inform the public.697 In Rankin v. McPherson698 the Court held protected an employee’s comment, made to a coworker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the President’s policies, “If they go for him again, I hope they get him.” Indeed, the Court in McPherson emphasized the clerical employee’s lack of contact with the public in concluding that the employer’s interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee’s First Amendment rights.699

In City of San Diego v. Roe,57 the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s “expression does not qualify as a matter of public concern . . . and Pickering balancing does not come into play.”58 The Court also noted that the officer’s speech, unlike federal employees’ speech in United States v. National Treasury Employees Union (NTEU),59 was “linked to his official status as a police officer, and designed to exploit his employer’s image,” and therefore “was detrimental to the mission and functions of his employer.”60 Therefore, the Court had “little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU].”61 This leaves uncertain whether, had the officer’s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern.

In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there is no protection — Pickering balancing is not to be applied — “when public employees make statements pursuant to their official duties,” even if those statements are about matters of public concern.62 In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and sued. The Supreme Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”63 The fact that the employee’s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.64 Rather, the “controlling factor” was that his expressions were made pursuant to his duties.”65 Therefore, another employee in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering balancing.

The protections applicable to government employees have been extended to independent government contractors, the Court announcing that “the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their protection.”700

697 This conclusion was implicit in Givhan, 439 U.S. 410 (1979), characterized by the Court in Connick as involving “an employee speak[ing] out as a citizen on a matter of general concern, not tied to a personal employment dispute, but [speaking] privately.” 461 U.S. at 148, n.8.

698 483 U.S. 378 (1987). This was a 5-4 decision, with Justice Marshall’s opinion of the Court being joined by Justices Brennan, Blackmun, Powell, and Stevens, and with Justice Scalia’s dissent being joined by Chief Justice Rehnquist, and by Justices White and O'Connor. Justice Powell added a separate concurring opinion.

699 “Where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful function from that employee’s private speech is minimal.” 483 U.S. at 390-91.

57 543 U.S. 77 (2004) (per curiam).

58 543 U.S. at 84.

59 513 U.S. 454 (1995) (discussed under “Government as Employer: Political and Other Outside Activities,” supra).

60 543 U.S. at 84.

61 543 U.S. at 80.

62 547 U.S. 410, 421 (2006).

63 547 U.S. at 421. However, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Id. at 419. Such necessity, however, may be based on a “common-sense conclusion” rather than on “empirical data.” Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 300 (2007) (citing Garcetti).

64 The Court cited Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), for these points. In Givhan, the Court had upheld the First Amendment right of a public school teacher to complain to the school principal about “employment policies and practices at [the] school which [she] conceived to be racially discriminatory in purpose or effect.” Id. at 413. The difference between Givhan and Ceballos was apparently that Givhan’s complaints were not made pursuant to her job duties, whereas Ceballos’ were. Therefore, Givhan spoke as a citizen whereas Ceballos spoke as a government employee. See Ceballos, 547 U.S. at 420-21.

65 547 U.S. at 421.

700 Board of County Comm'rs v. Umbehr, 518 U.S. 668, 673 (1996).

Thus, although the public employer cannot muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can (the First Amendment, inapplicable to the private employer, is applicable to the public employer),701 the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of “public concern,” then Connick applies and the employer is largely free of constitutional restraint.* If the speech does relate to a matter of public concern, then Pickering’s balancing test (as modified by Connick) is employed, the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties702 being balanced against the employee’s First Amendment rights. While the general approach is relatively easy to describe, it has proven difficult to apply.703 The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for “whistle-blowers” add to the mix.704

701 See, e.g., Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980) (political patronage systems impermissibly infringe protected belief and associational rights of employees); Madison School Dist. v. WERC, 429 U.S. 167 (1977) (school teacher may not be prevented from speaking at a public meeting in opposition to position advanced by union with exclusive representation rights). The public employer may, as may private employers, permit collective bargaining and confer on representatives of its employees the right of exclusive representation, Abood v. Detroit Bd. of Educ., 431 U.S. 209, 223-32 (1977), but the fact that its employees may speak does not compel government to listen to them. See Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979) (employees have right to associate to present their positions to their employer but employer not constitutionally required to engage in collective bargaining). See also Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984) (public employees not members of union have no First Amendment right to meet separately with public employers compelled by state law to “meet and confer” with exclusive bargaining representative). Government may also inquire into the fitness of its employees and potential employees, but it must do so in a manner that does not needlessly endanger the expression and associational rights of those persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969).

* In Connick, the Court noted that it did not suggest “that Myers’ speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment.” Rather, it was beyond First Amendment protection “absent the most unusual of circumstances.” 461 U.S. at 147. In Ceballos, however, the Court, citing Connick at 147, wrote that, if an employee did not speak as a citizen on a matter of public concern, then “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” 547 U.S. at 418.

702 In some contexts, the governmental interest is more far-reaching. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (interest in protecting secrecy of foreign intelligence sources).

703 For analysis of the efforts of lower courts to apply Pickering and Connick, see Massaro, Significant Silences: Freedom of Speech in the Public Sector Work-place, 61 S. CAL. L. REV. 1 (1987); and Allred, From Connick to Confusion: The Struggle to Define Speech on Matters of Public Concern, 64 IND. L.J. 43 (1988). In Waters v. Churchill, 511 U.S. 661 (1994), the Court grappled with what procedural protections may be required by the First Amendment when public employees are dismissed on speech-related grounds, but reached no consensus.

704 The principal federal law is the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16, 5 U.S.C. §§ 1201 et seq.

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