Free Speech and Parity: A Theory of Public Employee Rights

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. …