The Free Speech Rights of Off-Duty Government Employees

I. INTRODUCTION Until recently, Andrew Shirvell was an assistant attorney general in Michigan. This past fall, he created a blog attacking the openly gay president of the University of Michigan student body as a "racist" and "liar" who was promoting "a radical homosexual agenda."1 Initially, Michigan Attorney General Michael Cox - Shirvell's boss - condemned Shirvell's anti-homosexual rantings but resisted calls for Shirvell's firing, citing Shirvell's First Amendment right to say what he wants while he is off duty.2 In a statement, General Cox remarked: "Mr. Shirvell's personal opinions are his and his alone and do not reflect the views of the Michigan Department of Attorney General. But his immaturity and lack of judgment outside the office are clear."3 General Cox later fired Shirvell, citing an investigation that had revealed that Shirvell had "repeatedly violated office policies, engaged in borderline stalking behavior and inappropriately used state resources" to engage in his attack during work hours.4 Not all government employers would have waited so long to punish an employee for this sort of offensive off-duty speech. In addition, many lower courts have ruled against government employees in similar cases.5 Although General Cox told Anderson Cooper of CNN that the Supreme Court has held that a government employee enjoys broad First Amendment protection for speech that does not undermine his ability to do his job,6 the Court's jurisprudence is not so clear. The Supreme Court's most recent public-employee speech case, Garcetti v. Ceballos, may have served only to muddy the waters by embracing the distinction between a government employee acting as "an employee" and one acting "as a citizen."7 The Court had suggested this sort of binary approach to public-employee cases before,8 but it was not until Garcetti that the Court endorsed this approach as a guiding principle. When an employee is acting as "an employee," he enjoys no First Amendment protection for his speech. To bolster this conclusion, the Court invoked the government speech doctrine, arguing that when an employee speaks pursuant to his job duties, the government employer "has commissioned or created" that speech and can restrict it without violating the First Amendment.9 This reference to the government speech doctrine raises the question of whether there are other circumstances under which the government can control the speech of its employees in order to protect its own ability to communicate. Although Garcetti did not involve off-duty speech, it noted that when an employee is not speaking as part of his job duties but instead is speaking as a citizen on a matter of public concern, he may be subject to "only those speech restrictions that are necessary for [his] employer[] to operate efficiently and effectively."10 This statement is a summary of the Connick/ Pickering framework. Under this framework, a public employee's speech is not entitled to any First Amendment protection unless it is determined, as a threshold matter, that the speech involves a matter of public concern, and, even if that requirement is satisfied, the speech is protected only if the value of the speech outweighs the government employer's interests in restricting or punishing it. Although this is the general framework for public-employee speech cases, it is hardly clear from the Court's own jurisprudence that this is the framework that applies - or should apply - in cases involving off-duty expression, especially when the expression is not work related. In determining what sort of First Amendment rights government employees should enjoy when they are off duty, the distinction between speech "as an employee" and speech "as a citizen" is ultimately not as useful. Employees do not stop being citizens when they are at work; likewise, they do not stop being employees when they are not. Furthermore, it does not help to compare off-duty government employees to off-duty non-government employees. …