Publication Date
3-1-2024
Abstract
For nearly two centuries, public sector employment in the United States was governed by the privilege doctrine, also known as the right-privilege distinction, which stripped public employees of their citizenship rights by denying them protection against adverse employment actions retaliating against their exercise of those rights. In 1967, in Garrity v. New Jersey, the U.S. Supreme Court reversed course and found, in the context of a government investigation of state police officers who allegedly fixed traffic tickets, that the state could not coerce those officers to waive their constitutional right to remain silent during the investigation by threatening to fire them if they did not answer questions posed to them. In Garrity’s aftermath, the Court developed its Pickering–Connick–Garcetti framework, which regulates the extent to which public employers may take adverse employment actions against public employees who engage in speech that disrupts the workplace or interferes with its efficient operation. Under the Pickering–Connick–Garcetti framework, the Court permits public employers to take adverse employment actions against their employees when the speech is not on a matter of public concern, per Connick v. Myers; the speech is made pursuant to their job duties, per Garcetti v. Ceballos; or the speech is on a matter of public concern but the employer’s managerial interests outweigh the employees’ constitutional rights, per Pickering v. Board of Education. The Pickering–Connick–Garcetti framework was stable for about half a century until the Court once again disrupted that equilibrium in two cases decided in the past five years. In Janus v. American Federation of State, County, and Municipal Employees Council 31, the Court characterized union security clauses as unconstitutionally compelling speech from nonmember, union-represented public employees and therefore prohibited parties to public sector collective bargaining agreements from requiring those employees to pay any union dues. Then, in Kennedy v. Bremerton School District, the Court characterized a public high school football coach’s post-game prayer on the fifty-yard line as expression protected under the Free Exercise and Free Speech Clauses of the First Amendment and concluded that the school district unconstitutionally disciplined that coach, ignoring the disruptive and potentially dangerous effect that his speech had on those attending the game. This Article traces historical developments from our country’s inception to the present with an eye toward understanding the Court’s most recent jurisprudence and its effect on public employee speech. Our analysis draws the following five conclusions: first, recent cases have greatly narrowed the categorical exclusion from First Amendment protection for public employee speech expressed in the course of employees performing their job duties, thereby greatly narrowing Garcetti; second, Janus has exempted compelled speech claims from the Pickering–Connick analysis; third, Kennedy has also exempted religious exercise claims from the Pickering–Connick analysis; fourth, Janus and Kennedy have significantly expanded the category of speech that constitutes speech on a matter of public concern, thereby narrowing Connick; and fifth, as demonstrated in Kennedy, the Court has greatly reduced deference to public employers’ managerial judgments in weighing employer interests in the efficient delivery of public services against constitutionally protected speech interests. This is true even in cases where those managerial judgments are intended to prevent physical harm, thereby undermining public employer managerial authority. Having drawn those conclusions, we turn to the Janus–Kennedy framework to assess several hypotheticals set forth in this Article’s introduction to show how these cases have shifted the analysis in favor of employee speech. Finally, we speculate whether this shift is toward strengthening employee free speech rights, in general, or more cynically, a shift toward speech that this particular Court favors—religious speech—and a shift away from speech that this Court disfavors—union speech.
First Page
519
Recommended Citation
Anne Marie Lofaso & Martin H. Malin, The Supreme Court, the First Amendment, and the Erosion of Public Employer Managerial Authority, 101 Denv. L. Rev. 519 (2024).