The First Amendment is ordinarily thought to prohibit content or viewpoint discrimination. Yet public employers frequently regulate employees' speech based on the content or viewpoint of their speech. Additionally, they frequently seek to punish employees who publicly criticize their supervisors on the grounds that such criticism is insubordinate or will erode office discipline or morale.
The Supreme Court has attempted to address the special problems posed by the speech of public employees through the two-part "public concern" test. The test protects a public employee's speech if the speech relates to a matter of "public concern," and if the employee's speech interests outweigh that of the employer. This approach is problematic because it is difficult for the federal judiciary to determine what are issues of "public concern" worthy of First Amendment protection. Additionally, the public concern and balancing tests are difficult to apply and they come into tension with the overbreadth doctrine.
In light of these difficulties, the author argues for a new approach to the speech of public employees, one that would evaluate the speech of public employees under the rules governing incidental restrictions on speech. This approach requires employers to promulgate uniform policies that give employees fair notice of what they may say or write, instead of the ad hoe regulation that the Supreme Court has tolerated to date. At the same time, this approach leaves public employers free to regulate speech in the service of legitimate managerial objectives, such as banning racist and sexist speech from the workplace. As long as a restriction on speech reasonably advances a managerial objective (other than coercing ideological loyalty from public employees), the author argues that it should be upheld.
Permissible Content Discrimination under the First Amendment: The Strange case of the Public Employee,
25 Hastings Const. L.Q. 529
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