Free speech rights that work at work: From the first amendment to due process

UCLA Law Review

Volumn 54, Issue 6, 2007, Pages 1463-1496

  Estlund, Cynthia ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 34948846721     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (95)

1. Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L REV. 1256 (2005).
2. As this symposium has now taught me to call it.
3. For some of my thoughts along these lines, see CYNTHIA ESTLUND, WORKING TOGETHER: HOW WORKPLACE BONDS STRENGTHEN A DIVERSE DEMOCRACY 103-39 (2003); Cynthia Estlund, Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category, 59 GEO. WASH. L. REV. 1 (1990).
4. 126 S. Ct. 1951 (2006).
5. 461 U.S. 138 (1983).
6. Id.
7. McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (1892).
8. See Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964).
9. 391 U.S. 563 (1968).
10. Id. at 568.
11. For a brief review of the doctrine's development, see generally Estlund, supra note *, at 118-29.
12. 461 U.S. 138, 146 (1983).
13. Id. at 150-54.
14. Id.
15. 543 U.S. 77 (2004) (per curiam).
16. See Estlund, supra note *, at 130-35.
17. 513 U.S. 454 (1995). The ambiguities of this case are parsed in Estlund, supra note *, at 127-33.
18. City of San Diego, 543 U.S. at 81.
19. Ceballos v. Garcetti, 361 F.3d 1168, 1174 (9th Cir. 2004) (quoting Roth v. Veteran's Admin., 856 F.2d 1401, 1406 (9th Cir. 1988)).
20. Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006).
21. Pickering v. Bd. of Educ., 391 U.S. 568, 586 (1968) (emphasis added).
22. Garcetti, 126 S. Ct. at 1960.
23. See Estlund, supra note *, at 150-53.
24. 511 U.S. 661 (1994).
25. Id. at 671.
26. Id. at 674-75.
27. Indeed, Justice Breyer would have confined a ruling for Ceballos almost to the facts of the case. The employee would be protected only when he was obligated to speak both by professional ethics and by the U.S. Constitution itself (as in the case of Ceballos's disclosure of potentially exculpatory doubts about the prosecution's witnesses). See Garcetti, 126 S. Ct. at 1974-75 (Breyer, J., dissenting).
28. Id. at 1960. The majority's reference to the "liberties the employee might have enjoyed as a private citizen" harkens to a recurring theme in the opinion that seems to hint at an analytic framework. On closer examination, it turns out to be rhetorical trope that begs the important questions. See Estlund, supra note *, at 144-49.
29. See supra text accompanying notes 25-26.
30. The dissent in Garcetti pointed out that the Ninth Circuit's approach to these cases had apparently not produced a flood of lawsuits - about seventy in the courts of appeals, and about one hundred in the district courts in seventeen years. See 126 S. Ct. at 1968 (Souter, J., dissenting). But it is always difficult to know, based on available case statistics, how much of the iceberg one is seeing.
31. Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974) ("The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests."); see also Henry J. Friendly, Some Kind of Hearing, 123 U. PA. L. REV. 1267, 1270-75 (1975).
32. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
33. Much of this Part tracks quite closely the analysis in Estlund, supra note *, at 155-68.
34. See Bd. of Regents of State Colls, v. Roth, 408 U.S. 564 (1972); Perry v. Sindermann, 408 U.S. 593 (1972).
35. Perry, 408 U.S. at 601.
36. See Loudermill, 470 U.S. 532. On the need for judicial review (though not a de novo trial),
37. see Estlund, supra note *, at 158 & n.131.
38. The need for basic remedies along these lines is strongly implied by the due process cases. See Estlund, supra note *, at 157 & n.130.
39. See Cynthia Estlund, Free Speech and Due Process in the Workplace, 71 lND. L.J. 101 (1995).
40. This is true unless the government, in the course of termination, makes public charges that stigmatize the employee and damage his prospects for future employment. Such government actions implicate a liberty interest that triggers the right to a hearing to clear his name (but not to recover his job). See infra text accompanying notes 45-46.
41. The employer could claim that the employee's speech was not the reason she was fired, or could claim that they would have fired her anyway for another reason altogether. This would be a valid defense under the mixed-motive analysis of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977).
42. Such an interpretation might accord with an employee's actual expectations, but it is at odds with the presumption of employment at will, which governs in the absence of an explicit promise.
43. While the case law is sketchy, it suggests that a property interest in employment arises only if substantive limitations on discharge are roughly equivalent to a for-cause requirement. The paradigm case clearly involves a for-cause requirement. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985) (finding a property interest based on a statute providing for continued employment "during good behavior and efficient service," and prohibiting dismissal "except... for ... misfeasance, malfeasance, or nonfeasance in office").
44. I have found no case recognizing a property interest in employment on the basis of a prohibition of one or a few substantive grounds for discharge, and only one case explicitly rejecting such a claim. See Garrow v. Gramm, 856 F.2d 203, 206-07 (D.C. Cir. 1988); Estlund, supra note *, at 159-60.
45. Roth v. Bd. of Regents of State Colls., 446 F.2d 806, 810 (7th Cir. 1971).
46. Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 575 n.14 (1972).
47. See id. at 573; Wieman v. Updegraff, 344 U.S. 183, 191 (1952).
48. It is called "stigma-plus" because the injury to reputation alone is insufficient without some additional tangible loss such as termination of employment. See Owen v. City of Independence, 445 U.S. 622, 633 n.13 (1980).
49. Roth, 408 U.S. at 571 (alteration in original) (quoting Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter dissenting)).
50. See Paul v. Davis, 424 U.S. 693, 698-99 (1976).
51. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (rejecting a challenge to the state's ban on assisted suicide based on the claimed "right to die");
52. DeShaney v. Winnebago Co. Dep't of Soc. Servs., 489 U.S. 189, 196 (1988) (rejecting a § 1983 claim based on the state's failure to protect an endangered child).
53. But see Lawrence v. Texas, 539 U.S. 558 (2003) (finding a right to engage in consensual homosexual activity within the substantive due process right of privacy).
54. This property-liberty interest is thus a hybrid of the two similarly conditional procedural interests already recognized in the employment setting: (1) a liberty interest for procedural due process purposes though not a substantive fundamental right, like the liberty interest in not being stigmatized in connection with discharge; and (2) a property interest for procedural due process purposes though not property of the sort that cannot be taken without just compensation, like the property interest in just-cause employment. In either case, the interest triggers the right to procedural due process; however, if the state shows through that process that the facts are as it claims - that the stigmatizing statements are true or that there was just cause for discharge - then the deprivation is lawful.
55. See generally Henry P. Monaghan, First Amendment "Due Process," 83 HARV. L. REV. 518 (1970) (reviewing the development and advocating the expansion of procedural protections of First Amendment rights).
56. 511 U.S. 661 (1994).
57. Id. at 669-71.
58. Id. at 677-78. The plurality chose a middle ground between Justice Stevens's more speech-protective approach (what matters is what the employee actually said as found by the reviewing court),
59. see id. at 694-99 (Stevens, J., dissenting), and Justice Scalia's less speech-protective approach (what matters is what the employer believed was said),
60. see id. at 686-94 (Scalia, J., concurring).
61. 462 U.S. 367 (1983).
62. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), recognized an implied right of action against the federal government that parallels § 1983's remedy against state and municipal actors.
63. Bush, 462 U.S. 367.
64. Id. at 385.
65. Monetary relief was not fully compensatory in the civil service setting, and no punitive damages were available. Id. at 372-73.
66. Id. at 386. The Court reserved judgment on whether a Bivens remedy would be available for a First Amendment violation that could not be remedied under the civil service laws.
67. Id. at 391 (Marshall, J., concurring).
68. Id. at 388. In that context, the Court found "special factors counselling hesitation" in implying an additional judicial remedy.
69. Id. at 378-79 (citing Bivens, 403 U.S. at 396).
70. The problem of how to encourage employers to create, and employees to use, internal complaint mechanisms was addressed in the sexual harassment context in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998),
71. and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Faragher-Ellerth approach - an affirmative defense against some discriminatory harassment liability where the employer did act reasonably to redress alleged harassment internally but the employee did not - bears scrutiny in the whistleblowing context as well. I do not explore this further here.
72. See infra note 66.
73. Garcetti v. Ceballos, 126 S. Ct. 1951, 1965 n.2 (2006) (Souter, J., dissenting). But it does not require them, in order to get the benefit of Garcetti, to provide any protection for employees who engage in that dissenting speech.
74. Id. at 1961.
75. In Rankin v. McPherson, Ardith McPherson was overheard to say, after learning of the shooting of President Reagan and in the context of criticizing his policies, "If they go for him again, I hope they get him." 483 U.S. 378, 380 (1987). Her subsequent discharge was struck down as a violation of her free speech rights under Connick-Pickering. Id. at 392.
76. Various other due process solutions are possible. If the only concern were to enhance employees' ability to enforce their rights, without regard to the burden on employers, we might supplement existing First Amendment remedies with due process rights. That is the argument rejected in Roth. See supra text accompanying notes 43-45. That supplemental due process remedy might be tweaked, and made more palatable to employers, by requiring election of remedies - either litigation or an administrative hearing but not both - or exhaustion of the administrative process prior to litigation. Alternatively, one might craft a due process solution in the form of an affirmative defense along the lines of Faragher in the sexual harassment context. See supra note 62. The employer could defeat an employee's First Amendment claim by showing that it had made available, and the employee had unreasonably failed to use, a constitutionally adequate administrative process and remedy. If we then overlay various possibilities for which categories of speech would be covered by each procedural requirement, the permutations quickly multiply. Lest the larger issues get lost in the details and procedural technicalities, I take up only one fairly stark form of the question-whether to replace the First Amendment remedy with a due process remedy.
77. The judicial remedy might usefully be reinforced by recognizing a parallel liberty interest in these cases, thus allowing the employee to pursue an administrative remedy if she wishes. But that should supplement and not replace the judicial remedy in the NTEU context.
78. 462 U.S. 367 (1983).
79. 500 U.S. 20 (1991).
80. The arbitral forum must also make available the same remedies that would be available in court. That makes the quid pro quo of arbitration different from the quid pro quo entailed by substituting an administrative process and meaningful but less extensive remedies, as in Bush v. Lucas.
81. For a useful summary of the legal and empirical controversies after Gilmer v. Interstate/Johnson Lane Corp., see Richard A. Bales, Normative Consideration of Employment Arbitration at Gilmer's Quinceañera, 81 TUL. L. REV. 331 (2006).
82. I say "romanticized" because recent empirical studies indicate that plaintiffs lose an overwhelming percentage of those lawsuits, most without any hearing beyond a summary judgment motion. See Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. EMPIRICAL LEG. STUD. 429 (2004).
83. There is a separate question whether mandatory arbitration is subject to constitutional scrutiny under due process standards. For a brief discussion of this issue, see Cynthia Estlund, Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law, 155 U. PA. L. REV. 379, 409-11, 420 (2006).
84. This is the case for employees who believe they have been subject to discrimination or harassment, for example. See Herbert M. Kritzer et al., To Confront or Not to Confront: Measuring Claiming Rates in Discrimination Grievances, 25 LAW & SOC'Y REV. 875, 879-82 (1991). There is no obvious reason to believe that nascent free speech claims are more likely to turn into lawsuits.
85. Many small-state and local agencies might be hard pressed to create their own administrative processes to meet the demands of due process. Instead, each state, or a consortium of municipalities in each state, could establish administrative tribunals (or even arbitral tribunals) to hear these claims from different public agencies. If no administrative process were available, the question might be whether the right to bring a lawsuit in state court would satisfy due process requirements, or whether a federal lawsuit on the merits would be available to the employee by default.
86. I recognize that some of my claims may seem to be in tension with each other - for example, the claims that due process hearings will be less costly to employers and that such hearings will be more accessible to employees and more frequent than litigation. I discuss this concern below. See infra p. 1494.
87. For my own critique, see Estlund, supra note 3.
88. Connick v. Myers, 461 U.S. 138, 147 (1983) (emphasis added).
89. Connick calls for this sort of calibration even within the category of speech on matters of public concern. See id. at 150, 153-54.
90. See Estlund, supra note 3.
91. See Estlund, supra note 38.
92. A crucial distinction would remain between speech that is related to the employment by location or content and NTEU speech that is not. But that distinction seems fairly resistant to gamesmanship and does not create the kind of cliff effects that concern me here.
93. For an overview of the literature on reflexive law and the shift from regulation and adjudication to governance, with a particular focus on the law of the workplace, see Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004).
94. Michael C. Dorf, The Domain of Reflexive Law, 103 COLUM. L. REV. 384, 395-96 (2003) (discussing Gunther Teubner's account of reflexive law).
95. For a skeptical view of reflexive law and self-regulation in the context of workplace regulation, see Harry W. Arthurs, Private Ordering and Workers' Rights in the Global Economy: Corporate Codes of Conduct as a Regime of Labour Market Regulation, in LABOUR LAW IN AN ERA OF GLOBALIZATION 471, 485-87 (Joanne Conaghan et al. eds., 2002).