Constraining public employee speech: Government's control of its workers' speech to protect its own expression

Duke Law Journal

Volumn 59, Issue 1, 2009, Pages 1-68

  Norton, Helen ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 77951717720     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (394)

1. Garcetti v. Ceballos, 547 U.S. 410 (2006).
2. See cases cited infra note 16
3. See Garcetti, 547 U.S. at 410.
4. See cases cited infra note 16
5. See Chambers v. Dep't of the Interior, 515 F.3d 1362 (Fed. Cir. 2008).
6. Morales v. Jones, 494 F.3d 590, 597 (7th Cir. 2007).
7. Id. at 599 (Rovner, J., concurring in part and dissenting in part).
8. Foraker v. Chaffinch, 501 F.3d 231, 247 (3d Cir. 2007).
9. Woodlock v. Orange Ulster B.O.C.E.S., 281 Fed. App'x 66, 68 (2d Cir. 2008) (summary order).
10. Spiegla v. Hull, 481 F.3d 961, 965-66 (7th Cir. 2007).
11. Battle v. Bd. of Regents, 468 F.3d 755, 761-62 (11th Cir. 2006) (per curiam).
12. See Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006).
13. See Scott Jaschik, When Equity Official Takes Anti-Gay Stance, INSIDE HIGHER ED, May 5, 2008, http://www.insidehighered.com/news/2008/05/05/toledo.
14. See City of San Diego v. Roe, 543 U.S. 77, 78 (2004) (per curiam)
15. Dible v. City of Chandler, 515 F.3d 918, 922 (9th Cir. 2008)
16. Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342, 1344 (11th Cir. 2006).
17. See Shankar Vedantam, The Candidate, the Preacher, and the Unconscious Mind, WASH. POST, May 5, 2008, at A2 (describing observers' tendency to ascribe the views of Barack Obama's pastor to the candidate himself).
18. See United States v. Wilcox, 66 M.J. 442, 446 (C.A.A.F. 2008) (discussing First Amendment implications of the military disciplining a servicemember for his Facebook page advocating white supremacy)
19. TIMOTHY P. GLYNN, RACHEL S. ARNOW-RICHMAN & CHARLES A. SULLIVAN, EMPLOYMENT LAW: PRIVATE ORDERING AND ITS LIMITATIONS 326 (2007) ("Indeed, workers, and job applicants in particular, would be well-advised to assume that anything they say or post in publicly accessible areas of the internet will become known to potential employers....").
20. See Tenn. Secondary Sch. Athletic Ass'n v. Brentwood Acad., 551 U.S. 291, 299-300 (2007) (relying on public employee precedents for guidance in assessing First Amendment claims of a private school that had voluntarily joined a governmental athletic association)
21. Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (relying on public employee precedents for guidance in assessing First Amendment claims of an independent contractor)
22. Lowery v. Euverard, 497 F.3d 584, 596-97 (6th Cir. 2007) (relying on public employee precedents for guidance in assessing First Amendment claims of student-athletes).
23. See U.S. DEP'T OF LABOR, BUREAU OF LABOR STATISTICS, EMPLOYMENT, HOURS AND EARNINGS FROM THE CURRENT EMPLOYMENT STATISTICS SURVEY (2008), available at http://data.bls.gov/PDQ/outside.jsp?survey=ce (reporting that federal, state, and local governments currently employ 22,703,000 workers).
24. See infra notes 37-38 and accompanying text. Private employers remain constitutionally free to control their workers' speech because the First Amendment does not constrain private actors. A patchwork of federal and state statutes provides some protection to private workers' whistleblowing or other speech on certain topics. See, e.g., 42 U.S.C. § 2000e-3(a) (2006) (protecting workers' speech opposing unlawful discrimination).
25. Connick v. Myers, 461 U.S. 138, 143 (1983)
26. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
27. The Court has held that a more rigorous standard should apply to sweeping statutory restrictions on public employees' speech than that applied by Pickering as a post hoc assessment of individual disciplinary actions. United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 468 (1995) ("[T]he Government's burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action. The Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's 'necessary impact on the actual operation' of the Government." (quoting Pickering, 391 U.S. at 571)). In United States v. National Treasury Employees Union, 513 U.S. 454 (1995), the Court applied this test to strike down a statutory ban on government employees' receipt of honoraria for off-the-job expression, concluding that the government's operational interests were very weak in large part because "the vast majority of the speech at issue in this case does not involve the subject matter of Government employment and takes place outside the workplace." Id. at 470.
28. Connick, 461 U.S. at 143
29. Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979). Controversy remains over whether the "public concern" test is an appropriate threshold inquiry in First Amendment disputes involving employees' off-duty-rather than on-the-job-speech unrelated to employment.
30. See, e.g., George Rutherglen, Public Employee Speech in Remedial Perspective, 24 J.L. & POL. 129, 145, 150-51 (2008) (questioning the relevance of the public concern inquiry).
31. City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam) (characterizing the plaintiff's sexually explicit website as failing to address a matter of public interest). Courts sometimes struggle to distinguish speech on matters of public and private concern.
32. See Stephen Allred, From Connick to Confusion: The Struggle to Define Speech on Matters of Public Concern, 64 Ind. L.J. 43 (1988) (describing courts' difficulty in parsing speech on matters of public and private concern).
33. Compare Pappas v. Giuliani, 290 F.3d 143, 155 (2d Cir. 2002) (Sotomayor, J., dissenting) (characterizing any speech referring to race relations-including hateful racial speech-as inherently of public concern), with Vinci v. Neb. Dep't of Corr. Servs., 253 Neb. 423, 433-34 (1997) (concluding that a public employee's use of a racial epithet was not a matter of public concern for First Amendment purposes).
34. See Givhan, 439 U.S. at 413 (holding that a teacher's private criticism to her principal about the school's desegregation efforts touched upon a matter of public concern even if not aired publicly).
35. Connick, 461 U.S. at 141
36. see also Nat'l Treasury Employees Union, 513 U.S. at 466 ("[P]rivate speech that involves nothing more than a complaint about a change in the employee's own duties may give rise to discipline without imposing any special burden of justification on the government employer.").
37. Waters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion) ("[W]e have refrained from intervening in government employer decisions that are based on speech that is of entirely private concern. Doubtless some such speech is sometimes nondisruptive; doubtless it is sometimes of value to the speakers and the listeners. But we have declined to question government employers' decisions on such matters.")
38. Connick, 461 U.S. at 146 ("When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.").
39. See U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 564-65 (1973) (concluding that the Hatch Act's statutory ban on federal workers' partisan political activities is justified by the government's operational interest in a federal workforce free from political favoritism or the appearance of such favoritism)
40. Pickering v. Bd. of Educ., 391 U.S. 563, 569-71 (1968).
41. Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
42. Connick v. Myers, 461 U.S. 138 (1983).
43. see also Waters v. Churchill, 511 U.S. 661, 673 (1994) (plurality opinion) ("[W]e have given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved is on a matter of public concern, and even though when the government is acting as sovereign our review of legislative predictions of harm is considerably less deferential.").
44. United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 465 (1995).
45. Waters, 511 U.S. at 675
46. see also Locurto v. Giuliani, 447 F.3d 159, 163 (2d Cir. 2006) (observing that, for First Amendment purposes, the government receives greater deference when acting as a market participant than when acting as a government regulator).
47. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
48. Id. Justices Stevens, Souter, Breyer, and Ginsburg dissented, offering three different views. Justice Stevens would require all claims involving employees' speech on a matter of public interest to proceed to balancing.
49. See id. at 427 (Stevens, J., dissenting). Justice Souter, joined by Justices Stevens and Ginsburg, predicts that "only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety" should trump the government's interests when such speech is delivered pursuant to an employee's official duties. Id. at 435 (Souter, J., dissenting). Dissenting Justice Breyer, in contrast, would defer to government employers' judgment in the great majority of cases, permitting only employees' duty-related speech that presents "professional and special constitutional obligations" to proceed to balancing. Id. at 447-49 (Breyer, J., dissenting).
50. See id. at 421 ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes....").
51. Id. at 425 ("There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."). Speech on university governance issues, however, may be unprotected after Garcetti even if speech related to scholarship and teaching receives some sort of academic freedom protection.
52. See Renken v. Gregory, 541 F.3d 769, 774 (7th Cir. 2008) (applying Garcetti to conclude that the First Amendment does not protect a tenured professor's complaints about a university's use of grant funds because they were made pursuant to his official duties)
53. Hong v. Grant, 516 F. Supp. 2d 1158, 1167-68 (C.D. Cal. 2007) (applying Garcetti to conclude that the First Amendment does not protect a professor's critical statements regarding the hiring and promotion of other professors and the use of lecturers because this speech was uttered pursuant to his official duty to participate in university governance). Moreover, whether academic freedom protections extend beyond postsecondary education to primary and secondary school teachers remains unclear.
54. Compare Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 479-80 (7th Cir. 2007) (applying Garcetti to conclude that an elementary school teacher's classroom speech occurred pursuant to her official duties and was thus unprotected)
55. With Lee v. York County Sch. Div., 484 F.3d 687, 694-95 (4th Cir. 2007) (declining to apply Garcetti to a high school teacher's classroom speech because of academic freedom concerns).
56. See Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 184-87 (6th Cir. 2008) (proceeding to Pickering balancing after concluding that a public employee's official duties did not include responding to a reporter's questions about a supervisor's alleged sexual harassment).
57. See, e.g., Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1331-33 (10th Cir. 2007) (finding the plaintiff superintendent's communications to the school board about possible violations of state and federal law to be unprotected because they were made pursuant to her official duties, but permitting the superintendent's claim involving her speech to the state attorney general on the same topic to proceed to Pickering balancing because this speech was not among her official duties)
58. Freitag v. Ayers, 468 F.3d 528, 545-46 (9th Cir. 2006) (finding a corrections officer's reports of misconduct to her superiors unprotected under Garcetti because the internal reports were made pursuant to her official duties, but her communications with a state senator and the state office of inspector general on the same topic could proceed to balancing because they were not made pursuant to her official duties). Indeed, although the Garcetti Court found Mr. Ceballos's internal criticism of the police unprotected by the First Amendment, it remanded his claim that his discipline was also motivated by his speech to a local bar association that was not among his official duties. Garcetti, 547 U.S. at 443-44 (Souter, J., dissenting).
59. See Garcetti, 547 U.S. at 427 (Stevens, J., dissenting) ("[I]t seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.").
60. E.g., Callahan v. Fermon, 526 F.3d 1040, 1045 (7th Cir. 2008) (applying Garcetti to conclude that the First Amendment does not protect a police officer's report to supervisors of a fellow officer's potential misconduct because the report was made pursuant to his official duty to report wrongdoing)
61. Sigsworth v. City of Aurora, 487 F.3d 506, 510 (7th Cir. 2007) (applying Garcetti to conclude that the First Amendment does not protect a police officer's report to his supervisors about a fellow officer's misconduct in hampering the execution of arrest warrants because the report was made pursuant to his official duties)
62. Sillers v. City of Everman, No. 4:08-CV-055-A, 2008 U.S. Dist. LEXIS 39187, at *7 (N.D. Tex. May 13, 2008) (applying Garcetti to conclude that the First Amendment does not protect a police officer's report to supervising officers about unlawful acts committed by other police officers against citizens)
63. Hoover v. County of Broome, No. 3:07-cv-0009, 2008 U.S. Dist. LEXIS 31485, at *15 (N.D.N.Y. Apr. 15, 2008) (applying Garcetti to conclude that the First Amendment does not protect a correction officer's report about other officers' excessive use of force on a prison inmate)
64. Baranowski v. Waters, No. 05-1379, 2008 U.S. Dist. LEXIS 21301, at *71 (W.D. Pa. Mar. 18, 2008) (applying Garcetti to conclude that the First Amendment does not protect a police officer's complaints to his superiors about other police officers' potential misconduct in a shooting)
65. Maule v. Susquehanna Reg'l Police Comm'n, No. 04-CV-05933, 2007 Dist. LEXIS 73065, at *39-41 (E.D. Pa. Sept. 27, 2007) (applying Garcetti to conclude that the First Amendment does not protect a police chief's report of a local councilman's improprieties to the state police for criminal investigation)
66. Wesolowski v. Bockelman, 506 F. Supp. 2d 118, 121-22 (N.D.N.Y. 2007) (applying Garcetti to conclude that the First Amendment does not protect a sheriff's department employee's report that a corrections officer beat an inmate)
67. Burns v. Borough of Glassboro, No. 05-3034, 2007 U.S. Dist. LEXIS 42069, at *22-24 (D.N.J. June 11, 2007) (applying Garcetti to conclude that the First Amendment does not protect a police officer's report to internal affairs that the chief sexually harassed another officer)
68. Bland v. Winant, No. 03-6091, 2007 U.S. Dist. LEXIS 31094, at *12 (D.N.J. Apr. 27, 2007) (applying Garcetti to conclude that the First Amendment does not protect a police representative's report to the prosecutor of a councilmember's arrest).
69. E.g., Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (noting that the plaintiff, a police safety officer, concedes that, after Garcetti, the First Amendment does not protect his speech identifying a large number of cancers, miscarriages, birth defects, and other health problems suffered by individuals working a precinct with underground gasoline tanks when the reports are made pursuant to the plaintiff's official duties)
70. Green v. Bd. of County Comm'rs, 472 F.3d 794, 799-801 (10th Cir. 2007) (applying Garcetti to conclude that the First Amendment does not protect a lab technician's speech seeking to correct deficiencies in a testing program because the speech was made pursuant to her official duties)
71. McGee v. Pub. Water Supply, 471 F.3d 918, 920-21 (8th Cir. 2006) (applying Garcetti to conclude that the plaintiff's expressions of concern about environmental compliance were not protected by the First Amendment because they were made pursuant to his official duties as a county water supply district manager)
72. McQuary v. Tarrant County, No. 4:06-CV-622-Y, 2008 U.S. Dist. LEXIS 26494, at *31 (N.D. Tex. Mar. 31, 2008) (applying Garcetti to conclude that the First Amendment does not protect a medical liaison's letters to the county sheriff's department contending that various policies and procedures were in violation of the law because the speech was made pursuant to official duties).
73. E.g., Davis v. Cook County, 534 F.3d 650, 653 (7th Cir. 2008) (applying Garcetti to conclude that the First Amendment does not protect a nurse's memo "reflect[ing] the concern of a conscientious nurse to ensure and contribute to the smooth functioning of the ER and to advocate for the well-being of the patients under her care" because these concerns were expressed pursuant to her official duties)
74. Barclay v. Michalsky, 493 F. Supp. 2d 269, 271 (D. Conn. 2007) (applying Garcetti to conclude that the First Amendment does not protect a nurse's report that workers in a correctional facility's psychiatric ward were imposing excessive restraints on patients when the reports were made pursuant to her official duties)
75. Coward v. Gilroy, No. 3:05-CV-285, 2007 U.S. Dist. LEXIS 30075, at *11-14 (N.D.N.Y. Apr. 24, 2007) (applying Garcetti to conclude that the First Amendment does not protect a family care home operator's speech expressing concern about the quality of patients' health care)
76. Logan v. Ind. Dep't of Corr., No. 1:04-cv-0797-SEB-JPG, 2006 WL 1750583, at *2-3 (S.D. Ind. June 26, 2006) (applying Garcetti to conclude that the First Amendment does not protect a correctional facility health care administrator's reports about inmates' critically inadequate nursing care because such reports were made pursuant to her job duties).
77. E.g., Pagani v. Meriden Bd. of Educ., No. 3:05-CV-01115, 2006 U.S. Dist. LEXIS 92267, at *10-12 (D. Conn. Dec. 19, 2006) (applying Garcetti to conclude that the First Amendment does not protect a teacher's report that another teacher had shared nude photos with students when such reports were made pursuant to her official duties)
78. Houlihan v. Sussex Technical Sch. Dist., 461 F. Supp. 2d 252, 260 (D. Del. 2006) (applying Garcetti to conclude that the First Amendment does not protect a school psychologist's reports of Individuals with Disabilities Education Act noncompliance because the reports were made pursuant to the plaintiff's official duties).
79. E.g., Thompson v. District of Columbia, 530 F.3d 914, 917-18 (D.C. Cir. 2008) (applying Garcetti to conclude that reports of corruption made by the D.C. Lottery's chief of security were made pursuant to his official duties and were thus unprotected)
80. Vila v. Padrón, 484 F.3d 1334, 1339 (11th Cir. 2007) (applying Garcetti to conclude that a university vice president's objections to a wide range of internal misconduct-such as the university's failure to comply with proper bidding procedures when awarding contracts and its use of university funds to illustrate the poetry book of a trustee's daughter-were unprotected)
81. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007) (applying Garcetti to conclude that the First Amendment does not protect an athletic director's reports of financial irregularities to the principal and athletic department office manager because the reports were prepared in the course of performing his job duties)
82. Richards v. City of Lowell, 472 F. Supp. 2d 51, 80 (D. Mass. 2007) (applying Garcetti to conclude that the First Amendment does not protect a city financial manager's report of financial improprieties because such reports were made pursuant to his official duties)
83. Levy v. Office of the Legislative Auditor, 459 F. Supp. 2d 494, 497-99 (M.D. La. 2006) (applying Garcetti to conclude that the First Amendment does not protect a state auditor's Toastmaster speech criticizing office policy as speech pursuant to the plaintiff's official duties because his government employer required participation in the Toastmaster program to improve public speaking skills).
84. See, e.g., David L. Hudson, Jr., Garcetti's Palpable Effect on Public Employee Speech, FIRST AMENDMENT CENTER, May 29, 2007, http://www.firstamendmentcenter.org/analysis.aspx?id=18606 ("Garcetti is the kiss of death for many First Amendment cases.").
85. Here I focus only on courts' conclusions that government workers' off-duty speech carries a public meaning that may compromise the effectiveness of the government agency as an institution, rather than on the distinguishable defense that a particular plaintiff's off-duty speech undercuts her own ability to perform her job effectively. For examples of the latter, see infra note 195 and accompanying text.
86. City of San Diego v. Roe, 543 U.S. 77 (2004) (per curiam). San Diego may carry implications for public employees' substantive due process, as well as their free speech, rights.
87. See Paul M. Secunda, The (Neglected) Importance of Being Lawrence: The Constitutionalization of Public Employee Rights to Decisional Non-Interference in Private Affairs, 40 U.C. DAVIS L. REV. 85, 127-35 (2006).
88. San Diego, 543 U.S. at 78.
89. See supra note 27 and accompanying text
90. San Diego, 543 U.S. at 84.
91. Co-workers, as well as the government agency itself, may share similar associational concerns. For example, a police officer may feel that other officers' offensive off-duty speech debases her own public image, devaluing her employment.
92. Dible v. City of Chandler, 515 F.3d 918, 928-29 (9th Cir. 2008)
93. see also Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342, 1355-56 (11th Cir. 2006) (applying San Diego to uphold the termination of police officers for their off-duty appearance on sexually explicit websites).
94. Dible, 515 F.3d at 926, 928 (quoting San Diego, 543 U.S. at 81). Dible further notes that concerns about a heckler's veto "do not directly relate to the wholly separate area of employee activities that affect the public's view of a governmental agency in a negative fashion, and, thereby, affect the agency's mission." Id. at 928-29.
95. Pappas v. Giuliani, 290 F.3d 143, 146-48 (2d Cir. 2002).
96. see also Locurto v. Giuliani, 447 F.3d 159, 178-79 (2d Cir. 2006) (upholding the firing of police officers and firefighters who engaged in mocking racial stereotypes in an offduty holiday parade)
97. Weicherding v. Riegel, 981 F. Supp. 1143, 1148 (C.D. Ill. 1997) ("Permitting a sergeant affiliated with the Klan to remain [employed by a state correctional center] could send the message that the facility condones or even supports the philosophy of the Klan. This could further exacerbate racial tensions in the prison and in the community.").
98. See Locurto, 447 F.3d at 179 ("[T]he disruption need not be actual; the Government may legitimately respond to a reasonable prediction of disruption.")
99. see also Waters v. Churchill, 511 U.S. 661, 673 (1994) (plurality opinion) ("[W]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large. Few of the examples we have discussed involve tangible, present interference with the agency's operation.").
100. See Cynthia Estlund, Harmonizing Work and Citizenship: A Due Process Solution to a First Amendment Problem, 2006 SUP. CT. REV. 115, 133 (criticizing San Diego as "allow[ing] public employers to punish some off-duty speech that is ideologically obnoxious to them even without any impact on or link to its particular operations").
101. See Dible, 515 F.3d at 933-34 (Canby, J., concurring) ("A measureable segment of the population, for example, is vigorously antagonistic to homosexual activity and expression; it could easily be encouraged to mobilize were a police officer discovered to have engaged, off duty and unidentified by his activity, in a Gay Pride parade, or expressive cross-dressing, or any number of other expressive activities that might fan the embers of antagonism smoldering in a part of the population.").
102. See id. at 928 (majority opinion).
103. I earlier criticized Garcetti as a flawed government speech decision in an essay for the University of North Carolina's First Amendment Law Review symposium, Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace
104. See Helen Norton, Government Workers and Government Speech, 7 First Amendment L. Rev. 75, 83-88 (2008).
105. THOMAS I. EMERSON, The System of Freedom of Expression 697-98 (1970) ("[Government speech] takes the form of oral communications, such as speeches, statements, press conferences, and fireside chats, as well as written communications, such as pamphlets, books, periodicals, and other publications. It utilizes all available media, including printing presses, radio and television, motion pictures, and still pictures, and it achieves its dramatic effects through confrontations in hearings, investigations, and debates.")
106. see also Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1825 (1987) ("[I]t is probably not too outlandish an exaggeration to conclude that government organizations would grind to a halt were the Court seriously to prohibit viewpoint discrimination in the internal management of speech.")
107. Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 606 (1980) ("If government is to secure cooperation in implementing its programs, if it is to be able to maintain a dialogue with its citizens about their needs... government must be able to communicate.").
108. Shiffrin, supra note 71, at 604 ("Governments, then, can justify subsidizing the speech of public officials, not to reelect them or others, but because there is a substantial interest in hearing what they have to say.... [T]he public would have the advantage of knowing the collective judgment of the legislature and of knowing the views of its representatives, which would in turn be useful for evaluating them.").
109. See N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (rejecting the government's efforts to stop publication of the Pentagon Papers).
110. See, e.g., Memorandum from Patrick F. Philbin, Deputy Assistant Attorney Gen., Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President (Nov. 6, 2001), available at http://www.fas.org/irp/agency/doj/olc/commissions.pdf.
111. Government speech is by no means the only type of expression that derives its constitutional salience primarily, if not exclusively, from its instrumental value in facilitating listeners' informed decisionmaking
112. See Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV. 1256, 1268 (2005) ("[A] large number of the widely accepted justifications for freedom of speech are about the social and not individual value of granting to individuals an instrumental right to freedom of speech."). Commercial speech, for example, receives constitutional protection because of its value to recipients.
113. See Bates v. State Bar, 433 U.S. 350, 364 (1977) ("[C]ommercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking." (citations omitted))
114. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976) (holding that commercial speech is entitled to some constitutional protection because the "consumer's interest in the free flow of commercial information... may be as keen, if not keener by far, than his interest in the day's most urgent political debate.").
115. See Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1, 11 (2000) ("[G]overnment speech can help foster debate, fleshing out views, and leading toward a more educated citizenry and a better chance of reaching the right answer.")
116. Shiffrin, supra note 71, at 569 ("[S]peech financed or controlled by government plays an enormous role in the marketplace of ideas.").
117. See Pub. Health Serv., U.S. DEP'T OF HEALTH, EDUC., & WELFARE, PUB. NO. 1103, SMOKING AND HEALTH: REPORT OF THE ADVISORY COMMITTEE TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE 25-32 (1964), available at http://profiles.nlm.nih.gov/NN/B/B/M/Q/_/nnbbmq.pdf (describing the adverse health effects of smoking).
118. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (recounting the First Amendment's bar on government's viewpoint-based discrimination against private speech)
119. R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992) (same). Governmental restraints on speech only rarely survive strict scrutiny.
120. See, e.g., Burson v. Freeman, 504 U.S. 191, 211 (1992) (upholding the government's ban on campaign speech within 100 feet of polling places)
121. Buckley v. Valeo, 424 U.S. 1, 23-38 (1976) (per curiam) (upholding caps on campaign contributions).
122. Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 553 (2005) (characterizing the Department of Agriculture's campaign promoting beef products as government speech).
123. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1131 (2009) ("The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.")
124. Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000) (distinguishing the government's legitimate exercise of control over the views it itself expresses from the government's impermissible efforts to control the views expressed by private speakers).
125. In contrast to the emphasis on transparency in the government speech context, speech by anonymous private actors can be quite valuable indeed. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 337 (1995) (striking down Ohio's ban on the distribution of unsigned political leaflets).
126. See Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. ILL. L. REV. 939, 990 ("As a general matter, the First Amendment does not require the speech of the state to be truthful and not misleading....").
127. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271-73 (1964) (describing the value of false speech in spurring contributions to the marketplace of ideas)
128. see also Whitney v. California, 274 U.S. 357, 375 n.2 (1927) (Brandeis, J., concurring) ("We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors...." (quoting Thomas Jefferson)).
129. See Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 Ucla L. Rev. 1107, 1133 (2006) (finding no First Amendment bar to government misrepresentations about Iraq's possession of weapons of mass destruction).
130. Mark Spottswood, Falsity, Insincerity, and the Freedom of Expression, 16 WM. & MARY BILL RTS. J. 1203, 1203 (2009) ("False speech, therefore, is valuable because it is an essential part of a larger system that works to increase society's knowledge.").
131. Congress, for example, as part of its inherent investigative and oversight authority, has the constitutional power to compel the truthful testimony of executive branch officials (and others). See generally Nixon v. Adm'r of Gen. Servs., 433 U.S. 435 (1977) (describing Congress's inherent contempt powers)
132. McGrain v. Daugherty, 273 U.S. 135 (1927) (same).
133. See, e.g., Note, Avoidance of an Election or Referendum when the Electorate Has Been Misled, 70 HARV. L. REV. 1077, 1078-82 (1957) (describing statutes requiring truth in the government's statements accompanying propositions submitted to voters).
134. See Anderson v. Martin, 375 U.S. 399, 402 (1964) (striking down, on equal protection grounds, Louisiana's law requiring that political candidates be racially identified on all ballots and nominating papers, and stating that "by placing a racial label on a candidate at the most crucial stage in the electoral process-the instant before the vote is cast-the state furnishes a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another")
135. Greene, supra note 76, at 37-38 (describing government speech that may violate the Equal Protection or Establishment Clauses, but not the Free Speech Clause)
136. In Hohfeldian terms, government may be understood as possessing not a right but a privilege to its own speech. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 38-44 (1913) (distinguishing "rights" from "privileges")
137. Frederick Schauer, Hohfeld's First Amendment, 76 GEO. WASH. L. REV. 914, 914 (2008) ("Existing First Amendment doctrine takes a rather clear position with respect to the Hohfeldian structure: a First Amendment right is a right against the government and only against the government.").
138. Note that the Court has suggested that certain institutions with unique communicative functions-such as universities or broadcasters-may have First Amendment interests regardless of their public or private character. See, e.g., Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 673 (1998) (noting public and private broadcasters' First Amendment interests in journalistic freedom)
139. Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (observing that universities' academic freedom is "a special concern of the First Amendment").
140. See, e.g., Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 139 (1973) (Stewart, J., concurring) ("The First Amendment protects the press from governmental interference; it confers no analogous protection on the Government.")
141. MARK G. YUDOF, When Government Speaks: Politics, Law, and Government Expression in America 42-43 (1983) (arguing that government does not possess First Amendment free speech rights)
142. Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1501-08 (2001) (arguing that recognizing government's own First Amendment rights is inconsistent with constitutional text and purpose). But see United States v. Am. Library Ass'n, 539 U.S. 194, 211 (2003) (declining to decide whether government entities have First Amendment rights)
143. id. at 225 (Stevens, J., dissenting) (urging the Court to recognize public libraries as First Amendment rightsholders). Moreover, for arguments that state governments may assert First Amendment rights against federal efforts to regulate their speech, see generally David Fagundes, State Actors as First Amendment Speakers, 100 NW. U. L. REV. 1637 (2006)
144. Matthew C. Porterfield, State and Local Foreign Policy Initiatives and Free Speech: The First Amendment as an Instrument of Federalism, 35 STAN. J. INT'L L. 1 (1999).
145. See EMERSON, supra note 71, at 708-09 ("[T]he government can restrict its own expression, or that of its agents (aside from their own private expression), without invading any First Amendment right.")
146. KEVIN R. KOSAR, Cong. Research Serv., Public Relations and Propaganda: Restrictions ON Executive Agency Activities 5 (2005) (describing various congressional appropriations laws that prohibit agencies' use of funds for "publicity or propaganda purposes")
147. YUDOF, supra note 91, at 170, 302 (describing statutory restrictions on government's partisan speech)
148. Frederick Schauer, Is Government Speech a Problem?, 35 STAN. L. REV. 373, 376 n.18 (1983) (reviewing YUDOF, supra note 91) (discussing statutory and guarantee clause limits on official partisanship)
149. Edward H. Ziegler, Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C. L. REV. 578, 586-98, 605 n.169 (1980) (same).
150. For another example, consider the Supreme Court's recent decision in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009). There, both the government and a private party asserted that privately donated, permanent monuments in public parks reflected their own expression. Id. at 1129-30.
151. The Court ruled for the government, concluding that "[p]ermanent monuments displayed on public property typically represent government speech." Id. at 1132. As yet another example, states increasingly claim the messages displayed on specialty license plates as their own expression. Such claims have been met with mixed success in the courts because the circuits have split in their characterizations of specialty license plates as governmental or private speech. The Sixth Circuit, for example, concluded that Tennessee's issuance of a "Choose Life" license plate reflected the legislature's own pro-life views and thus constituted government speech within the state's power to control; it thus rejected the ACLU's First Amendment challenge to the state's refusal of its request for a "Pro-Choice" plate. ACLU of Tenn. v. Bredesen, 441 F.3d 370, 379-80 (6th Cir. 2006). In contrast, the Fourth, Eighth, and Ninth Circuits have characterized the same plates as predominantly private expression, upholding First Amendment challenges to states' refusal to issue plates with competing messages.
152. See Roach v. Stouffer, 560 F.3d 860, 867-68 (8th Cir. 2009)
153. Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 960 (9th Cir. 2008), cert. denied, 129 S. Ct. 56 (2008) (upholding the Arizona Life Coalition's challenge to Arizona's denial of its proposed "Choose Life" plate)
154. Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 793 (4th Cir. 2004) (upholding Planned Parenthood's First Amendment challenge to South Carolina's decision to issue a "Choose Life" but not a "Pro-Choice" plate).
155. The Seventh Circuit concluded that specialty license plates do not constitute government speech, but it upheld the state's rejection of a "Choose Life" plate as a reasonable, viewpoint-neutral regulation of a nonpublic forum to ensure the appearance of government neutrality on abortion. Choose Life Ill., Inc. v. White, 547 F.3d 853, 863-67 (7th Cir. 2008).
156. See Page v. Lexington County Sch. Dist. One, 531 F.3d 275, 278-79 (4th Cir. 2008). In the interest of full disclosure, I served pro bono as counsel of record to amici in support of respondent school board in this case upon appeal.
157. See Brief of Amici National School Boards Ass'n et al., in Support of Affirmance, Page v. Lexington County Sch. Dist. One, (4th Cir. 2008) (No. 07-1697).
158. Page, 531 F.3d at 277.
159. But not always. See Pleasant Grove, 129 S. Ct. at 1132 ("There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation.").
160. 2 SMOLLA & NIMMER ON FREEDOM OF SPEECH § 19:25.50 (2007) ("The Supreme Court in Johanns did not offer a comprehensive analytical definition of 'government speech.'").
161. Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005).
162. Id. at 562; see also id. at 553 ("The Beef Promotion and Research Act of 1985... announces a federal policy of promoting the marketing and consumption of 'beef and beef products,' using funds raised by an assessment on cattle sales and importation. The statute directs the Secretary of Agriculture to implement this policy by issuing a Beef Promotion and Research Order (Beef Order or Order), and specifies four key terms it must contain...." (citations omitted)).
163. A number of lower courts have synthesized various appellate decisions to create a fourfactor test for characterizing speech as private or governmental: "(1) the central 'purpose' of the program in which the speech in question occurs; (2) the degree of 'editorial control' exercised by the government or private entities over the content of the speech; (3) the identity of the 'literal speaker'; and (4) whether the government or the private entity bears the 'ultimate responsibility' for the content of the speech." Sons of Confederate Veterans, Inc. v. Comm'r of Va. Dep't of Motor Vehicles, 288 F.3d 610, 618 (4th Cir. 2002)
164. see also Wells v. City & County of Denver, 257 F.3d 1132, 1140 (10th Cir. 2001). The continuing vitality of this four-factor test remains uncertain after Johanns.
165. See, e.g., Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 963 (9th Cir.), cert. denied, 129 S. Ct. 56 (2008) (noting that "[t]here is some question as to what standard we should apply in differentiating between private and government speech" and concluding that Johanns is distinguishable but instructive)
166. ACLU of Tenn. v. Bredesen, 441 F.3d 370, 380 (6th Cir. 2006) (suggesting that the four-part test might have been overtaken by the Supreme Court's decision in Johanns).
167. See Helen Norton, The Measure of Government Speech: Identifying Expression's Source, 88 B.U. L. Rev. 587, 591-92 (2008). For other commentators' thoughtful discussion of the challenges posed by competing government and private claims to contested speech, see generally Bezanson & Buss, supra note 91
168. Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. Rev. 605 (2008)
169. Leslie Gielow Jacobs, Who's Talking? Disentangling Government and Private Speech, 36 U. Mich. J.L. Reform 35 (2002)
170. Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L.J. 983 (2005).
171. The Fourth Circuit reached the same conclusion after applying the Johanns factors described above. See Page v. Lexington County Sch. Dist. One, 531 F.3d 275, 285 (4th Cir. 2008). The court distinguished the board's actions-in which it made clear its stance, and linked and cited to other materials that supported its position-from the creation of a chat room or other forum for the ventilation of individual views. See id. at 284 ("Had a linked website somehow transformed the School District's website into a type of 'chat room' or 'bulletin board' in which private viewers could express opinions or post information, the issue would, of course, be different.").
172. Rust v. Sullivan, 500 U.S. 173 (1991).
173. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) ("The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding.").
174. Government's decision to remain neutral on a particular topic may reflect a strategic decision to conserve limited political capital or to reserve judgment on a controversy as the public debate continues; in any event, that decision also provides the public with valuable information about its government's expressive choices
175. See Frederick Schauer, Comment, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 100 (1998) ("[T]he state cannot literally speak, but can speak only through the voices of others....").
176. Rust, 500 U.S. at 180 (explaining that employees of clinics receiving federal funding were "expressly prohibited from referring a pregnant woman to an abortion provider, even upon specific request").
177. Id. (quoting 42 C.F.R. § 59.8(b)(5)). Although the regulations did not require that the government be identified as the message's source, the majority observed that "[n]othing in [the Title X regulations] requires a doctor to represent as his own any opinion that he does not in fact hold." Id. at 200.
178. See, e.g., Bezanson & Buss, supra note 91, at 1394-96 (arguing that patients could mistakenly attribute the government's views to their doctors)
179. Robert C. Post, Essay, Subsidized Speech, 106 YALE L.J. 151, 172-75 (1996) (same).
180. See R.J. Reynolds Tobacco Co. v. Shewry, 384 F.3d 1126, 1130 (9th Cir. 2004) (rejecting tobacco companies' First Amendment challenge to California's surtax on cigarettes that paid for a public health campaign criticizing the tobacco industry when the advertisements bore the transparently governmental tagline "Sponsored by the California Department of Health Services").
181. For a more recent example of the Supreme Court's failure to insist on functional transparency as a requirement of government speech, see Johanns v. Livestock Marketing Ass'n, 544 U.S. 550, 553 (2005). That case characterizes beef advertisements authorized by Congress and developed under the supervision of the Secretary of Agriculture as government speech even though they did not indicate-and in fact obscured-their governmental origins to viewers; the ads bore only the tagline "Funded by America's Beef Producers." Id. at 555.
182. This formulation is also consistent with the factors identified by the Johanns Court as salient to a government speech inquiry because this formulation requires that the government first "establish" the message to be communicated by the employee, as well as control its ultimate delivery. See supra note 101 and accompanying text.
183. As discussed supra, Garcetti is not the first of the Court's decisions to ignore the theoretical foundations of government speech-Rust and Johanns treated government speech similarly. See supra note 103 and accompanying text.
184. See Garcetti v. Ceballos, 547 U.S. 410, 430 (2006) (Souter, J., dissenting) (noting that Garcetti's new "official duties" rule protects internal employee reports of a school's racist hiring practices when made by a teacher but not by a personnel manager, even though the distinction matters not to the expression's value to the public).
185. Id. at 421 (majority opinion).
186. See id. at 437 (Souter, J., dissenting) ("Unlike the doctors in Rust, Ceballos was not paid to advance one specific policy among those legitimately available, defined by a specific message or limited by a particular message forbidden."). As the Court has observed, the prosecution's interest "is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935).
187. See Cynthia Estlund, Free Speech Rights That Work at Work: From the First Amendment to Due Process, 54 UCLA L. REV. 1463, 1475 (2007) ("[T]he claim rejected in Garcetti was as much about fairness, and about vindicating the employee's reasonable expectations about what the job required (and presumably therefore permitted him to do), as it was about his liberties.").
188. See Boyce v. Andrew, 510 F.3d 1333, 1349 (11th Cir. 2007) (Birch, J., concurring) ("In Garcetti, the Court has built upon Pickering and succeeding cases to give lower federal courts a distinction in analysis that expedites review of First Amendment, retaliation cases involving government employees....").
189. See Garcetti, 547 U.S. at 422. Professor Rosenthal urges that "[a]n employee called upon to speak as part of his duties... is not exercising a 'liberty' interest" because such speech "is supposed to be performed in a manner consistent with management's wishes." Lawrence Rosenthal, The Emerging First Amendment Law of Managerial Prerogative, 77 FORDHAM L. REV. 33, 49 (2008).
190. See Garcetti, 547 U.S. at 434 (Souter, J., dissenting) ("[W]hen constitutionally significant interests clash, resist the demand for winner-take-all....")
191. Charles W. "Rocky" Rhodes, Public Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism, 15 WM. & MARY BILL RTS. J. 1173, 1187 (2007) ("Eschewing the prevailing balancing standard governing [government employee free speech] claims, the Court adopted a new categorical rule banning any constitutional safeguards."). As the Garcetti majority correctly emphasized, "Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission.... If Ceballos' superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action." Garcetti, 547 U.S. at 422-23 (majority opinion). But the Garcetti Court then erred in failing to require the defendant to show that Mr. Ceballos's speech was flawed in any way. Instead, the majority's bright-line rule treated his speech pursuant to his official duties-no matter how temperate, accurate, or otherwise sound-as entirely unprotected by the First Amendment.
192. See infra note 128 and accompanying text
193. Before Garcetti's bright-line rule, courts generally characterized government workers' allegations of unsafe, illegal, or improper behavior as matters of public concern, but reached mixed results when weighing the value of that speech against its impact on the government employer's operations depending on its accuracy or tone. See, e.g., Allred, supra note 24, at 62-63.
194. See Garcetti, 547 U.S. at 527 (Stevens, J., dissenting) (explaining that the Pickering/Connick balancing test allows employers to discipline employee speech that is inflammatory or misguided).
195. Moreover, the employee must ultimately prove, as an additional element of her First Amendment claim, that her expression was a substantial or motivating factor in her punishment by her governmental employer. If she establishes such causation, the government defendant may still escape liability by establishing the affirmative defense that it would have taken the same action against the plaintiff even absent her speech. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). For an example of this test, in which the court concludes that the plaintiff failed to prove that his speech played a role in a school board's decision not to renew his contract, see Samuelson v. LaPorte Community School Corp., 526 F.3d 1046, 1054 (7th Cir. 2008).
196. Justice Stevens's dissent, for example, indicates his support for a rule that would require all claims involving employees' speech on a matter of public interest to proceed to balancing
197. See Garcetti, 547 U.S. at 427 (Stevens, J., dissenting). Dissenting Justice Souter apparently agrees, but predicts that "only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety" should prevail after such balancing. Id. at 435 (Souter, J., dissenting). Dissenting Justice Breyer, in contrast, would defer to government employers' judgment in the great majority of cases, permitting only employees' duty-related speech that presents "professional and special constitutional obligations" to proceed to balancing. Id. at 447-49 (Breyer, J., dissenting).
198. See Chambers v. Dep't of the Interior, 515 F.3d 1362, 1365-66, 1368 (Fed. Cir. 2008) (discussing the firing of the Chief of the U.S. Park Police following a newspaper interview in which she expressed concern about budgetary requests for staffing and understaffing's adverse impact on public security).
199. See Christine Elzer, The "Official Duties" Puzzle: Lower Courts' Struggle with First Amendment Protection for Public Employees After Garcetti v. Ceballos, 69 U. PITT. L. REV. 367, 367 (2007).
200. See supra notes 48-53 and accompanying text
201. Rosenthal, supra note 125, at 38
202. Garcetti, 547 U.S. at 423.
203. Relying upon the public to hold government employers politically responsible for firing truthful whistleblowers and other employees engaged in valuable speech requires confidence that the public will learn about such actions and the underlying speech that triggered them. Except for high-profile whistleblowers, this may rarely be the case.
204. See Randy J. Kozel, Reconceptualizing Public Employee Speech, 99 NW. U. L. REV. 1007, 1040 (2005) (observing that likelihood of political backlash against government officials who discipline employees for their speech is "most pronounced when the employee is fairly visible, generally meaning highranking, so that her dismissal causes a stir and creates the prospect of political backlash against the firing party").
205. Professor Rosenthal stresses the limited value of such speech to the public employee as speaker, urging that "[a]n employee called upon to speak as part of his duties... is not exercising a 'liberty' interest" because such speech "is supposed to be performed in a manner consistent with management's wishes." Rosenthal, supra note 125, at 49. In contrast, I am especially concerned with the public's interest in that employee's speech, especially when that employee delivers precisely the speech required by her job duties-for example, speech by public safety officers on matters of public safety and law enforcement.
206. See Andrew v. Clark, 561 F.3d 261, 273 (4th Cir. 2009) (Wilkinson, J., concurring) ("[A]s the state grows more layered and impacts lives more profoundly, it seems inimical to First Amendment principles to treat too summarily those who bring, often at some personal risk, its operations into public view. It is vital to the health of our polity that the functioning of the ever more complex and powerful machinery of government not become democracy's dark lagoon.").
207. See Andrew Bernie, Recent Development, A Principled Limitation on Judicial Interference: Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), 30 HARV. J.L. & PUB. POL'Y 1047, 1048 (2007) (defending Garcetti as "a prudent exercise of judicial restraint that avoids the specter of judicial micromanagement of governmental affairs").
208. Garcetti, 547 U.S. at 435 (Souter, J., dissenting) ("First Amendment protection less circumscribed than what I would recognize has been available in the Ninth Circuit for over 17 years, and neither there nor in other Circuits that accept claims like this one has there been a debilitating flood of litigation.").
209. Wilkie v. Robbins, 127 S. Ct. 2588, 2613 (2007) (Ginsburg, J., concurring in part and dissenting in part).
210. Sheldon Nahmod also explains how government's efficiency interests receive sufficient protection through the long-existing doctrines of causation and qualified immunity
211. See Sheldon H. Nahmod, Public Employee Speech, Categorical Balancing and § 1983: A Critique of Garcetti v. Ceballos, 42 U. RICH. L. REV. 561, 587 (2008).
212. ALEXANDER MEIKLEJOHN, Free Speech and its Relation to Self-Government 68 (1948)
213. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring).
214. See EMERSON, supra note 71, at 571 ("The hazards involved in a court's making determinations of this nature are admittedly formidable. But such a judgment is not totally beyond the reach of judicial capacity.")
215. YUDOF, supra note 91, at 188-90 (describing courts' institutional capacity for and experience in scrutinizing government activities for violations of individual rights)
216. As philosopher Stephen Lukes explains in another context, "the most effective and insidious use of power is to prevent such conflict from arising in the first place." STEVEN LUKES, Power: A Radical View 27 (2d ed. 2005)
217. see also EMERSON, supra note 71, at 563-64 ("Government employees may thus make important contributions to the discussion of public issues, and those contributions may become the more vital as the viewpoint of the speaker diverges from official policy."). Unblinking judicial deference to government control of employee speech similarly threatens to squelch dissent at great cost.
218. Toni M. Massaro, Significant Silences: Freedom of Speech in the Public Sector Workplace, 61 S. CAL. L. REV. 3, 5 (1987)
219. see also EMERSON, supra note 71, at 564 ("[F]reedom of expression on the part of government employees can play an important role in counteracting those stultifying forces which customarily pervade bureaucracy. Organizational pressures toward dullness and conformity in the public service can perhaps be partly overcome by establishing firm principles that encourage, or at least protect, diversity in opinion and discussion.")
220. Ken Matheny & Marion Crain, Disloyal Workers and the "Un-American" Labor Law, 82 N.C. L. REV. 1705, 1706 (2004) ("We argue that the law's suppression of worker voice and efforts to coerce attachment yields a dysfunctional workforce of disloyal and disengaged workers who offer relatively low productivity and poor morale.").
221. See David A. Super, Are Rights Efficient? Challenging the Managerial Critique of Individual Rights, 93 CAL. L. REV. 1051, 1056 (2005) (explaining "the contributions a rightsbased system can make to the efficiency and effectiveness of governmental activities").
222. Garcetti v. Ceballos, 547 U.S. 410, 425 (2005).
223. Id. at 439-41 (Souter, J., dissenting).
224. See, e.g., LOUIS FISHER, Cong. Research Serv., National Security Whistleblowers 2 (2005) ("[T]he agencies created by Congress to safeguard the rights of whistleblowers [] have not in many cases provided the anticipated protections....")
225. Stephen I. Vladeck, The Espionage Act and National Security Whistleblowing After Garcetti, 57 AM. U. L. REV. 1531, 1533 (2008) (describing limits of statutory protections for national security whistleblowers).
226. Federal workers' First Amendment remedies are already significantly limited. The Supreme Court held that federal employees cannot bring claims in federal court for damages for violations of their First Amendment rights because Congress provided federal employees with an effective alternative remedy under the Civil Service Reform Act. Bush v. Lucas, 462 U.S. 367, 388-90 (1983). Under the Civil Service Reform Act, federal workers seeking to bring a First Amendment claim must file an initial appeal of the agency action against them before an administrative law judge designated by the Merit Systems Protection Board (MSPB). That decision may be reviewed by the MSPB itself, and the Board's decision may be appealed to the Federal Circuit. But Professor Paul Secunda's review of these decisions concluded that federal workers' statutory remedies under the Act are largely meaningless as a practical matter, finding that no First Amendment Pickering claim filed by a federal employee against his or her agency has ever been successful on the merits before either the MSPB or the Federal Circuit. Paul M. Secunda, Whither the Pickering Rights of Federal Employees?, 79 U. COLO. L. REV. 1101, 1103 (2008). State and local workers, in contrast, may bring First Amendment and other constitutional claims against their employers in federal court under 42 U.S.C. § 1983, but with limitations (for example, the Eleventh Amendment limits the availability of damages against state but not local governments). See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978)
227. Steffel v. Thompson, 415 U.S. 452, 472-73 (1974).
228. See supra notes 48-52 and accompanying text
229. See, e.g., Callahan v. Fermon, 526 F.3d 1040, 1045 (7th Cir. 2008)
230. Ruotolo v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008)
231. Foraker v. Chaffinch, 501 F.3d 231, 247 (3d Cir. 2007)
232. Morales v. Jones, 494 F.3d 590, 596 (7th Cir. 2007)
233. Sigsworth v. City of Aurora, 487 F.3d 506, 509 (7th Cir. 2007)
234. Vila v. Padrón, 484 F.3d 1334, 1339 (11th Cir. 2007)
235. Spiegla v. Hull, 481 F.3d 961, 967 (7th Cir. 2007)
236. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007)
237. McGee v. Pub. Water Supply, 471 F.3d 918, 920 (8th Cir. 2006)
238. Battle v. Bd. of Regents, 468 F.3d 755, 761-62 (11th Cir. 2006) (per curiam)
239. Sillers v. City of Everman, No. 4:08-CV-055-A, 2008 U.S. Dist. LEXIS 39187, at *7 (N.D. Tex. May 13, 2008)
240. Hoover v. County of Broome, No. 3:07-cv-0009, 2008 U.S. Dist. LEXIS 31485, at *20 (N.D.N.Y. Apr. 16, 2008)
241. Baranowski v. Waters, No. 05-1379, 2008 U.S. Dist. LEXIS 21301, at *71 (W.D. Pa. Mar. 18, 2008)
242. Maule v. Susquehanna Reg'l Police Comm'n, No. 04-CV-05933, 2007 U.S. Dist. LEXIS 73065, at *40 (E.D. Pa. Sept. 27, 2007)
243. Wesolowski v. Bockelman, 506 F. Supp. 2d 118, 121-22 (N.D.N.Y. 2007)
244. Barclay v. Michalsky, 493 F. Supp. 2d 269, 271 (D. Conn. 2007)
245. Coward v. Gilroy, No. 3:05-CV-285, 2007 U.S. Dist. LEXIS 30075, at *12 (N.D.N.Y. Apr. 24, 2007)
246. Linskey v. City of Bristol, Civil No. 3:05-cv-872(CFD), 2007 U.S. Dist. LEXIS 26986, at *13 (D. Conn. Mar. 30, 2007)
247. Richards v. City of Lowell, 472 F. Supp. 2d 51, 80 (D. Mass. 2007)
248. Pagani v. Meriden Bd. of Educ., No. 3:05-CV-01115, 2006 U.S. Dist. LEXIS 92267, at *8 (D. Conn. Dec. 19, 2006)
249. Levy v. Office of the Legislative Auditor, 459 F. Supp. 2d 494, 499 (M.D. La. 2006)
250. Logan v. Ind. Dep't of Corr., No. 1:04-cv-0797-SEB-JPG, 2006 WL 1750583, at *1 (S.D. Ind. June 26, 2006).
251. See Garcetti, 547 U.S. at 427 (Stevens, J., dissenting) ("[I]t seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.")
252. Nahmod, supra note 143, at 580 (discussing inefficiencies created by the Garcetti rule)
253. On a spectrum of attenuation, government's concerns about the potentially damaging effects of employee speech are most direct when an employee speaks at work about work. Next, arguably, is speech at work not about work, followed by speech away from work about work. But furthest afield, assuredly, is speech away from work not about work.
254. Debate continues over whether the value of the employee's speech should be measured solely in terms of its value to the public in facilitating self-governance or also in terms of its value to the employee. The Court, however, values both private speaker and public listener interests when assessing the constitutionality of a statute that limits a broad category of speech by large numbers of government workers.
255. See United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 468 (1995) ("[T]he Government's burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action. The Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's 'necessary impact on the actual operation' of the Government." (citing Pickering v. Bd. of Educ., 391 U.S. 563, 571 (1968))).
256. Richard R. Lau & David P. Redlawsk, Advantages and Disadvantages of Cognitive Heuristics in Political Decision Making, 45 AM. J. POL. SCI. 951, 953 (2001) (describing observers' tendency to ascribe the views of candidates' associates to candidates themselves).
257. SAMUEL L. POPKIN, The Reasoning Voter: Communication and Persuasion in Political Campaigns 71 (2d ed. 1994).
258. James N. Druckman, Does Political Information Matter?, 22 POL. COMM. 515, 515 (2005)
259. Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and "Disclosure Plus," 50 UCLA L. REV. 1141, 1158-59 (2003).
260. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 1009 (1995).
261. See, e.g., Kristina R. Olson et al., Judgments of the Lucky Across Development and Culture, 94 J. PERSONALITY & SOC. PSYCHOL. 757, 766 (2008) (concluding, in part, that children view targets as lucky or unlucky based on the behavior and experiences of the targets' family associates).
262. Steven L. Neuberg et al., When We Observe Stigmatized and "Normal" Individuals Interacting: Stigma by Association, 20 Personality & SOC. Psychol. Bull. 196, 206 (1994) (concluding that straight male targets were more likely to be denigrated by observers when they were seen talking with a gay male friend than with a straight male friend).
263. Michelle R. Hebl & Laura M. Mannix, The Weight of Obesity in Evaluating Others: A Mere Proximity Effect, 29 Personality & Soc. Psychol. Bull. 28, 35 (2003).
264. Although beyond the scope of this Article, this troubling reality raises the question of whether the law should create incentives for such onlookers to be more discerning in the conclusions they draw from such associations
265. The Supreme Court has never ruled on the expressive content, if any, of an organization's employment decisions. In Hishon v. King & Spalding, 467 U.S. 69 (1984), the Court found, with very little discussion, that a defendant law firm had failed to demonstrate that prohibiting it from sex-based discrimination when making its partnership decisions would undermine its expressive choices. Id. at 77.
266. Government's associational choices outside of the employment context may also communicate substantive messages, inviting further concerns about their potential expressive content
267. See, e.g., Ann Bartow, Trademarks of Privilege: Naming Rights and the Physical Public Domain, 40 U.C. DAVIS L. REV. 919, 932-33 (2007) ("Because a naming gesture imputes social meaning to the physical public domain, acts of visible branding can infuse a public facility with strong associative values that affect public perceptions and permeate the collective public conscience. For example, both residents and outsiders are likely to view a community in which a public school is named for Robert E. Lee very differently from a community in which a public school is named for Martin Luther King, Jr.").
268. Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
269. Id. at 574-75 ("[T]he presence of the organized marchers would suggest [the parade organizers'] view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics.... GLIB's participation would likely be perceived as having resulted from the Council's customary determination about a unit admitted to the parade, that its message was worthy of presentation and quite possibly of support as well."). Similarly, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S. Ct. 1297 (2006), the Court observed that some such choices are more communicative than others, distinguishing expressive decisions about whom to admit as a member or a leader or other insider from what it characterized as a law school's comparatively nonexpressive act of allowing military recruiters to use its facilities. Id. at 1309-10 ("Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive.").
270. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
271. Schools have claimed a wide variety of contested expression as their own. See Chiras v. Miller, 432 F.3d 606, 618 (5th Cir. 2005) (concluding that a school's choice of textbooks and other curricular materials constitutes government speech)
272. Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1016-17 (9th Cir. 2000) (concluding that the contents of a school's bulletin board commemorating Gay and Lesbian Awareness Month reflected the district's own expression even while inviting individuals to join and contribute to it, and thus rejecting a First Amendment challenge by a teacher who sought to post materials questioning homosexuality's morality).
273. Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918, 925 (10th Cir. 2002).
274. Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 370-71 (4th Cir. 1998) (en banc)
275. see also Curry ex rel. Curry v. Hensiner, 513 F.3d 570, 577 n.1 (6th Cir. 2008) ("For speech to be perceived as bearing the imprimatur of the school does not require that the audience believe the speech originated from the school, only that an observer would reasonably perceive that the school approved the speech.").
276. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
277. Id. at 702 (Souter, J., dissenting) ("It is certainly possible for an individual to become so identified with a position as to epitomize it publicly. When that position is at odds with a group's advocated position, applying an antidiscrimination statute to require the group's acceptance of the individual in a position of group leadership could so modify or muddle or frustrate the group's advocacy as to violate the expressive associational right.")
278. id. at 694-95 (Stevens, J., dissenting) (emphasizing that "Dale did not carry a banner or a sign; he did not distribute any factsheet; and he expressed no intent to send any message").
279. Id. at 697 (Stevens, J., dissenting) ("[I]t is not likely that BSA would be understood to send any message, either to Scouts or to the world, simply by admitting someone as a member.").
280. Compare id. at 653 (majority opinion) ("As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression."), with Roberts v. U.S. Jaycees, 468 U.S. 609, 626-27 (1984) (emphasizing that although the Jaycees had "taken public positions on a number of diverse issues, [and]... regularly engage[d] in a variety of... activities worthy of constitutional protection under the First Amendment," there was "no basis in the record for concluding that admission of women as full voting members will impede the organization's ability to engage in these protected activities or to disseminate its preferred views").
281. See Erwin Chemerinsky & Catherine Fisk, The Expressive Interest of Associations, 9 WM. & MARY BILL RTS. J. 595, 601 (2001) (characterizing Dale as "totally undermin[ing]" Roberts)
282. Tobias Barrington Wolff & Andrew Koppelman, Expressive Association and the Ideal of the University in the Solomon Amendment Litigation, 27 Soc. Phil. & POL'Y 92, 101-03 (2008).
283. Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 575 (1995)
284. see also Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 85-87 (1980) (predicting that reasonable observers would not attribute the views of leafleters to the owner of the mall, and thus rejecting the mall owner's First Amendment claim of compelled speech).
285. I discuss these cases not to suggest that governmental bodies have their own First Amendment rights to expressive association, but instead to illuminate when and under what circumstances courts have concluded that certain associations do send a substantive message about an organization's views. See supra notes 89-91 and accompanying text
286. see also Paul M. Secunda, The Solomon Amendment, Expressive Associations, and Public Employment, 54 UCLA L. REV. 1767, 1797-98 (2007) (expressing concern that Rumsfeld may be misunderstood as suggesting that public law schools have First Amendment rights of expressive association and that this misunderstanding would further diminish public employees' constitutional rights).
287. See Ctr. for Bio-Ethical Reform, Inc. v. L.A. County Sheriff Dep't, 533 F.3d 780, 787 n.4 (9th Cir. 2008) ("The term 'heckler's veto' first appeared in a footnote in Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966). We use this term to describe restrictions on speech that stem from listeners' negative reactions to a particular message."). As the Supreme Court has made clear in other First Amendment contexts, "[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969)
288. see also Bachellar v. Maryland, 397 U.S. 564, 567 (1970) ("[I]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers...." (quoting Street v. New York, 394 U.S. 576, 592 (1969))).
289. Dible v. City of Chandler, 515 F.3d 918 (9th Cir. 2008).
290. Id. at 928 ("[A]s soon as Ronald Dible's indecent public activities became widely known, officers in the department began suffering denigration from members of the public....").
291. Id. at 933-34 (Canby, J., concurring) ("A measureable segment of the population, for example, is vigorously antagonistic to homosexual activity and expression; it could easily be encouraged to mobilize were a police officer discovered to have engaged, off duty and unidentified by his activity, in a Gay Pride parade, or expressive cross-dressing, or any number of other expressive activities that might fan the embers of antagonism smoldering in a part of the population.")
292. see also Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985) ("Here not only was the perceived threat of disruption only to external operations and relationships, it was caused not by the speech itself but by threatened reaction to it by offended segments of the public. Short of direct incitements to violence by the very content of public employee speech (in which case the speech presumably would not be within general first amendment protection), we think this sort of threatened disruption by others reacting to public employee speech simply may not be allowed to serve as justification for public employer disciplinary action directed at that speech.").
293. See Bieluch v. Sullivan, 999 F.2d 666, 673 (2d Cir. 1993) ("To hold otherwise [in a case involving the disciplining of a state trooper for off-duty speech on local political controversies] would seriously undermine the first-amendment rights of public employees. Whenever a government employee became personally involved in a controversial public issue, those on the opposite side of the issue could get the employee transferred or discharged simply by expressing a concern to the employee's superior that government functions were being threatened.").
294. Government-whether acting as employer or regulator-remains free to punish speech that is unprotected by the First Amendment, such as obscenity or fighting words. See, e.g., Miller v. California, 413 U.S. 15, 24-25 (1973) (defining speech that rises to the level of obscenity as unprotected)
295. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (defining "'fighting' words" as unprotected). This Subpart focuses on employees' off-duty speech that would otherwise be entitled to full First Amendment protection if uttered by an individual not employed by the government.
296. Hawkins v. Dep't of Pub. Safety & Corr. Servs., 602 A.2d 712, 720 (Md. 1992). In other cases, courts similarly agreed that public employees' off-duty speech adversely affected their ability to perform their own jobs.
297. See Piscottano v. Murphy, 511 F.3d 247, 252-53 (2d Cir. 2007) (concluding that corrections officers' association with a motorcycle club with a long history of criminal activity undermined their own effective job performance because it jeopardized their working relationship with other officers and their ability to work in prisons populated by club members and rival club members)
298. Melzer v. Bd. of Educ., 336 F.3d 185, 189-92 (2d Cir. 2003) (concluding that the plaintiff's active membership in an organization that sought "to bring about a change in the attitudes and laws governing sexual activity between men and boys.... had undermined his ability to serve as a teacher" because of students' and parents' concerns about his ability to perform his job duties)
299. Tindle v. Caudell, 56 F.3d 966, 968-73 (8th Cir. 1995) (concluding that a police officer's racially offensive Halloween costume at a Fraternal Order of Police lodge damaged his working relationships with fellow officers). For an expression of concern that permitting even performance-based dismissals for public employees' off-duty speech poses unacceptable First Amendment costs, see Hawkins, 602 A.2d at 721-27 (Bell, J., dissenting). To illustrate further the distinction between performance-based and expression-based justifications for government's discipline of employee speech, consider the military's prohibition of misconduct, including speech, that operates "to the prejudice of good order and discipline" (reflecting concern about speech that undermines servicemembers' actual performance) or that is "of a nature to bring discredit upon the armed forces" (reflecting concern about speech that undermines the military's expression of its own public image). 10 U.S.C. § 934 (2006). Compare United States v. Wilcox, 66 M.J. 442, 443-52 (C.A.A.F. 2008) (concluding that a soldier's Internet communications supporting white supremacy violated neither provision), with id. at 452-62 (Baker, J., dissenting) (maintaining that the facts supported a charge of discrediting the armed forces).
300. McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892).
301. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) ("To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions....")
302. see also Rankin v. McPherson, 483 U.S. 378, 395 (1987) (Scalia, J., dissenting) ("The Court long ago rejected Justice Holmes' approach to the free speech rights of public employees....")
303. Keyishian v. Bd. of Regents, 385 U.S. 589, 591-610 (1967) (rejecting McAuliffe's reasoning).
304. See, e.g., Ronald A. Cass, The Perils of Positive Thinking: Constitutional Interpretation and Negative First Amendment Theory, 34 UCLA L. REV. 1405, 1411 (1987) ("Most theoretical writings have suggested variants of four different values as critical to speech protection: individual development, democratic government, social stability, and truth." (citations omitted))
305. Thomas I. Emerson, First Amendment Doctrine and the Burger Court, 68 CAL. L. REV. 422, 423 (1980) ("Over the years, we have come to view freedom of expression as essential to: (1) individual self-fulfillment; (2) the advance of knowledge and the discovery of truth; (3) participation in decisionmaking by all members of society; and (4) maintenance of the proper balance between stability and change.").
306. See, e.g., Kozel, supra note 137, at 1010 (proposing "full First Amendment protection to employee speech that occurs off the job and is directed at audiences broader than the workplace audience, while affording no First Amendment protection to employee speech that occurs on the job or is directed solely at workplace audiences").
307. This is something of a twist on social role theory, which posits that individuals often shape their behavior to fit the expectations of others with respect to various roles
308. See, e.g., Richard E. Priehs, Appointed Counsel for Indigent Criminal Appellants: Does Compensation Influence Effort?, 21 JUST. SYS. J. 57, 59 (1999) ("Role theory posits that the behavior of the individual may be shaped by the demands and rules of others....")
309. June Louin Tapp & Felice J. Levine, Legal Socialization: Strategies for an Ethical Legality, 27 STAN. L. REV. 1, 9 (1974) (arguing that social role theory "portrays the individual as a mirror of others' expectations").
310. Much of the on-duty speech of such employees may be considered government speech entirely within the government's power to control under the approach articulated in Part II, because such employees are often hired specifically to deliver the views of the government officials they represent
311. Gordon v. Griffith, 88 F. Supp. 2d 38, 50, 57-58 (E.D.N.Y. 2000) (citations omitted).
312. Locurto v. Giuliani, 447 F.3d 159, 178-79 (2d Cir. 2006).
313. See, e.g., Tom R. Tyler & Peter Degoey, Collective Restraint in Social Dilemmas: Procedural Justice and Social Identification Effects on Support for Authorities, 69 J. PERSONALITY & SOC. PSYCHOL. 482, 482-83 (1995) (concluding that the more trust and cooperation a government institution engenders, the more legitimate and thus the more effective it becomes).
314. Some courts of appeal continue to cite with approval Holmes's aphorism that a police officer may have a constitutional right to speak, but no constitutional right to be a policeman-even though the Supreme Court has explicitly rejected Holmes's approach as inconsistent with free speech values. E.g., Dible v. City of Chandler, 515 F.3d 918, 931 n.9 (9th Cir. 2008)
315. Pappas v. Giuliani, 290 F.3d 143, 147 (2d Cir. 2002). Although those courts' continuing embrace of Holmes's since-discredited observation may demonstrate a disquieting misunderstanding of contemporary First Amendment protections for government workers' speech, this trend may instead simply reflect courts' intuition that law enforcement agencies have particularly strong expressive interests in this context.
316. See, e.g., Seegmiller v. Laverkin City, 528 F.3d 762, 765 (10th Cir. 2008) (describing a law enforcement code of ethics requiring officers to "keep [their] private life unsullied as an example to all and [to] behave in a manner that does not bring discredit" to the agency)
317. Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342, 1346 (11th Cir. 2006) (describing police department code of ethics in which officers pledge to "keep my private life unsullied as an example to all").
318. See, e.g., Young v. City of Providence, 404 F.3d 4, 16 (1st Cir. 2005) (characterizing department policy as requiring officers to be on duty at all times)
319. Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989)
320. Davis v. Murphy, 559 F.2d 1098, 1100-01 (7th Cir. 1977)
321. Davenport v. Bd. of Fire & Police Comm'rs, 278 N.E.2d 212, 216 (Ill. App. Ct. 1972) ("[T]here is no distinction between 'off duty' or 'on duty' misconduct by a police officer.... By the very nature of his employment a police officer is in the eyes of the public and for the good of the department must exercise sound judgment and realize his responsibilities to the department and the public at all times.")
322. Eubank v. Sayad, 669 S.W.2d 566, 568 (Mo. Ct. App. 1984) ("In a very real sense a police officer is never truly off-duty.").
323. The argument for maximizing governmental control over law enforcement-as opposed to most other government jobs-is bolstered by its paramilitary organization and its resulting reliance on structure, hierarchy, and order. See, e.g., Robin D. Barnes, Blue by Day and White by [K]night: Regulating the Political Affiliations of Law Enforcement and Military Personnel, 81 IOWA L. REV. 1079, 1158, 1166 (1996).
324. Courts generally characterize police officers as holding positions that "invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy," Rosenblatt v. Baer, 383 U.S. 75, 86 n.13 (1966), and thus are considered public officials for purposes of triggering the actual malice standard in defamation cases. See, e.g., Rattray v. City of Nat'l City, 36 F.3d 1480, 1486 (9th Cir. 1994)
325. Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981)
326. Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 287 (Mass. 2000)
327. Tomkiewicz v. Detroit News, Inc., 635 N.W.2d 36, 42-43 (Mich. Ct. App. 2001)
328. Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977)
329. DeAngelis v. Hill, 847 A.2d 1261, 1263-64 (N.J. 2004)
330. Hailey v. KTBS, Inc., 935 S.W.2d 857, 860-61 (Tex. App. 1996).
331. See, e.g., Melzer v. Bd. of Educ., 336 F.3d 185, 198 (2d Cir. 2003) (holding that a teacher's position "by its very nature requires a degree of public trust not found in many other positions of public employment").
332. Adeno Addis, Role Models and the Politics of Recognition, 144 U. PA. L. REV. 1377, 1381 (1996).
333. See Marisa Anne Pagnattaro, What Do You Do when You Are Not at Work?: Limiting the Use of Off-Duty Conduct as the Basis for Adverse Employment Decisions, 6 U. PA. J. LAB. & EMP. L. 625, 681 n.378 (2004) (listing examples of teachers' codes of conduct governing off-duty behavior).
334. For example, although I expect that most courts and observers would characterize law enforcement officers as falling into this category, there may be less consensus as to whether elementary and secondary school teachers act as the face and voice of the government to the same degree
335. Building inspectors, for example, likely more easily escape their government role in the public eyes when off duty. See, e.g., Murray v. Jamison, 333 F. Supp. 1379, 1380-82 (W.D.N.C. 1971) (finding that firing a city building inspection dispatcher for his Klan membership violated the First Amendment). Of course, a building inspector who engages in race discrimination in the performance of his job can be fired without running afoul of the First Amendment.
336. See, e.g., Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 627-28 (5th Cir. 2008) (holding that a manager's speech related to legal implications of scheduling changes was not protected under the Fair Labor Standards Act unless he steps "outside of his... role of representing the company" to assert interests adverse to his employer)
337. Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 376 (5th Cir. 1998) (holding in-house counsel's speech reporting discrimination by a client/employer was unprotected by Title VII because it divulged client confidences; speech "that breaches the ethical duties of the legal profession is unprotected under Title VII")
338. McKenzie v. Renberg's Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996) (holding that a personnel director's speech informing her employer of possible FLSA violations was not protected against retaliation because she was not asserting FLSA rights or taking a position adverse to her employer's interests but "merely performing her everyday duties as personnel director")
339. Rachel S. Arnow Richman, A Cause Worth Quitting For? The Conflict Between Professional Ethics and Individual Rights in Discriminatory Treatment of Corporate Counsel, 75 IND. L.J. 963, 983-85 (2000) (describing courts' difficulties in assessing whether in-house counsel can escape their role as attorneys-including their duty of undivided loyalty to their clients-to speak for themselves as workers to assert discrimination complaints against employers or clients). Similarly, the handful of state statutes that provide protections for public and private employees' speech away from work generally include provisions that permit employers to control the off-duty speech of employees in certain jobs that require them to represent the employer at all times.
340. See, e.g., COLO. REV. STAT. § 24-34-402.5(1)(a) (2008) (permitting employer discipline of off-duty speech that is "reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer").
341. Dible v. City of Chandler, 515 F.3d 918, 928 (9th Cir. 2008) ("The law and their own safety demands that [police officers] be given a degree of respect, and the sleazy activities of Ronald and Megan Dible could not help but undermine that respect.").
342. Along the same lines, Scott Moss has observed that courts have too quickly deferred to certain government institutions as unique, thus underprotecting First Amendment rights. Scott A. Moss, Students and Workers and Prisoners-Oh, My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine, 54 UCLA L. REV. 1635, 1671 (2007) (urging that "less institution-specific speech doctrine could take appropriate account of institutional difference without exaggerating those differences").
343. City of San Diego v. Roe, 543 U.S. 77, 78 (2004) (per curiam).
344. See, e.g., Moore v. City of Wynnewood, 57 F.3d 924, 933-34 (10th Cir. 1995) (holding that a police officer's remarks while in uniform and claiming to speak for the department impaired the city's interest in controlling who purports to speak on its behalf); Local 491, Int'l Bhd. of Police Officers. v. Gwinnett County, 510 F. Supp. 2d 1271, 1278-87 (N.D. Ga. 2007) (upholding a city's policy prohibiting officers from wearing uniforms at a county board of commissioners meeting); City of Indianapolis v. Heath, 686 N.E.2d 940, 946 (Ind. Ct. App. 1997) (upholding the discipline of a police officer for making anti-Semitic remarks about the mayor while in uniform as likely to impair "confidence in and trust of that agency among members of the community").
345. See, e.g., Roe v. Humke, 128 F.3d 1213, 1215-16 (8th Cir. 1997) (holding that an officer was not acting under state law when committing a sexual assault because, inter alia, he was not in uniform, carrying his gun, or driving a police car)
346. Pickrel v. City of Springfield, 45 F.3d 1115, 1118-19 (7th Cir. 1995) (concluding that an off-duty officer working as a private security guard acted under color of state law by, inter alia, wearing his uniform, displaying his badge, and carrying his gun)
347. Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980) (holding that an off-duty officer was acting under color of state law as a bank security guard when he flashed police identification while making a detention)
348. Davis v. Murphy, 559 F.2d 1098, 1101 (7th Cir. 1977) (concluding that officers acted under color of state law in provoking a fight when, inter alia, they were carrying their guns and badges).
349. Trademarks are features that signal to the public the source of a service or product, and trademark infringement actions seek to prevent one party from capitalizing on the additional persuasive effects of having its product's source misattributed to another, potentially more credible, party. See Ann Bartow, Likelihood of Confusion, 41 SAN DIEGO L. REV. 721, 725 (2004)
350. Barton Beebe, Search and Persuasion in Trademark Law, 103 Mich. L. Rev. 2020, 2021 (2005).
351. For an application of this principle to public employees' speech on government e-mail that may be the technological equivalent of letterhead, see Bowers v. Scurry, 276 Fed. App'x 278, 280-83 (4th Cir. 2008). That case rejected a First Amendment challenge by a university human resources employee who had been disciplined for sending her colleagues an e-mail that was critical of pay restructuring legislation that the university had specifically supported. The court specifically noted the danger that readers would mistakenly attribute her views to the university because the messages were sent via university e-mail and bore her signature stamp indicating her university position. Id.
352. The Nebraska Supreme Court, for example, upheld the Nebraska State Patrol's discharge of a trooper discovered to have joined the Klan-and, more specifically, to have participated in off-duty web discussions with others associated with the Klan in which he identified himself as employed in law enforcement in Nebraska. State v. Henderson, 762 N.W.2d 1, 3-18 (Neb. 2009). The state court held "that Nebraska public policy precludes an individual from being reinstated to serve as a sworn officer in a law enforcement agency if that individual's service would severely undermine reasonable public perception that the agency is uniformly committed to the equal enforcement of the law and that each citizen of Nebraska can depend on law enforcement officers to enforce the law without regard to race." Id. at 17. The state supreme court addressed only whether the lower court had correctly vacated as contrary to public policy an arbitrator's reinstatement award, declining to "revisit the arbitrator's discussion of constitutional issues, although his conclusions on those issues [-that the State Patrol had violated the trooper's constitutional rights-] are highly suspect." Id. at 5. Central to the court's holding was its conclusion that the trooper's off-duty expression undermined the state patrol's ability to control its own image: "One cannot simultaneously wear the badge of the Nebraska State Patrol and the robe of a Klansman without degrading what that badge represents when worn by any officer." Id. at 18.
353. Nixon v. City of Houston, 511 F.3d 494, 500 n.9 (5th Cir. 2007), cert. denied, 128 S. Ct. 2504 (2008)
354. see also Eaton v. Harsha, 505 F. Supp. 2d 948, 949-74 (D. Kan. 2007) (upholding police officers' discharge for sending racially offensive e-mails to an African-American op-ed writer that identified their law enforcement employment).
355. See United States v. Wilcox, 66 M.J. 442, 443-52 (C.A.A.F. 2008) (concluding that a servicemember's private conversations supportive of white supremacy were considerably less likely to threaten the armed forces' expressive interests than his Facebook entry and other Internet communications on the same topic.).
356. See supra Part III.B.1.
357. See Pappas v. Giuliani, 290 F.3d 143, 154 (2d Cir. 2002) (Sotomayor, J., dissenting) (distinguishing anonymous off-duty racist speech by an officer assigned to internal computer operations from public communications of racism, especially by beat cops or policy leaders).
358. As Justice Stevens pointed out in another context, an organization's concerns about expressive association are at their strongest when the organization advocates a specific viewpoint that it seeks to shield from distortion or interference by its association with a dissenting individual speaker
359. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 687 (2000) (Stevens, J., dissenting) ("[T]he organization must at least show it has adopted and advocated an unequivocal position inconsistent with a position advocated or epitomized by the person whom the organization seeks to exclude.").
360. Many police department mission statements express a commitment to evenhandedness (even as they vary in the breadth of their commitment). See, e.g., Porter County Sheriff's Dep't, Mission Statement, http://www.portercountysheriff.com/mission-statement.html (last visited June 21, 2009) (stating a commitment to treat "all citizens and fellow employees in a fair and equitable manner without regard to race, gender, religion, national origin, physical or mental disability or sexual orientation")
361. Ventnor City Police Dep't, Mission Statement, http://www.ventnorcitypolice.org/mission_statement.htm (last visited June 21, 2009) (stating a commitment to "faithful service to the public without regard to race, religion, ethnicity, gender, social status or political affiliation")
362. The Village of Niles, IL, Niles Police Department Mission Statement, http://www.vniles.com/Content/templates/?a=69 (last visited June 21, 2009) (stating commitment to "equally and fairly protect and serve all those people within its jurisdiction without regard to race, color, religion, ethnicity, gender, age or sexual orientation").
363. Consider, for example, a sheriff department's employee who gives a television interview publicly identifying his off-duty work as a Klan organizer as well as his employment in law enforcement
364. See McMullen v. Carson, 754 F.2d 936, 937, 940 (11th Cir. 1985) (describing a strong public reaction reflecting "the notion that Jacksonville blacks should resist arrest by Sheriff's personnel for fear of their lives" and holding "only that a law enforcement agency does not violate the First Amendment by discharging an employee whose active participation in an organization with a history of violent activity, which is antithetical to enforcement of the laws by state officers, has became known to the public and created an understandably adverse public reaction that seriously and dangerously threatens to cripple the ability of the law enforcement agency to perform effectively its public duties").
365. See Nat'l Advisory Comm'n on Civil Disorders, Report of the Nat'l Advisory Comm'n on Civil Disorders 165-66 (1968)
366. Barnes, supra note 209, at 1084-88 (documenting the prevalence of law enforcement officers who are members of the Klan)
367. Flanagan v. Munger, 890 F.2d 1557 (10th Cir. 1989).
368. Id. at 1567-68 (upholding an officer's First Amendment challenge to his discipline for stocking sexually explicit films in his video store as protected off-duty speech unrelated to employment).
369. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (recounting the First Amendment's bar on government's viewpoint-based discrimination against private speech)
370. R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992).
371. See Connick v. Myers, 461 U.S. 138, 143 (1983) (permitting discipline of an employee's speech that was critical of her employer).
372. STEVEN J. HEYMAN, FREE SPEECH AND HUMAN DIGNITY 3 (2008)
373. see also Charles R. Lawrence III, If He Hollers, Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 476-81 (arguing that certain racist speech is unusually harmful precisely because of its content)
374. Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. 1, 4-6 (1985) (arguing that a First Amendment insistence on content neutrality masks and reinforces substantive inequality among speakers).
375. HEYMAN, supra note 238, at 4
376. See Corbin, supra note 103, at 685-89
377. see also Clare Huntington, Family Law's Textures: Social Norms, Emotion, and the State, 59 EMORY L.J. (forthcoming 2010) (manuscript at 40, on file with the Duke Law Journal) ("[T]he important question [is] whether the state, through the apparatus of public law, should seek to reinforce norms that are not consistent (as they so often are not) with principles of tolerance and equality.... Where the state gives sanction to social norms that ostracize, stigmatize, or the like, that is more troubling than where the state reinforces norms of parental concern, stability, and empathy.").
378. As Joseph Tussman observed in the context of government's educational expression, "The danger in the careless use of notions of neutrality and non-partisanship is that the concern for fairness may be taken as requiring the relinquishing of commitment." JOSEPH TUSSMAN, GOVERNMENT AND THE MIND 80 (1977) (discussing how public schools must be nonpartisan yet not "neutral" in terms of their commitment to certain political values).
379. As Professor Corbin acknowledges, the distinction between "harmful" and "distasteful" speech is "hotly contested." Corbin, supra note 103, at 685-86.
380. Requiring organizations to speak clearly on certain topics may not be practical
381. See Dale Carpenter, Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach, 85 MINN. L. REV. 1515, 1542 (2001) (noting, in another context, that a similar requirement for private groups "misses the subtlety of speech, especially the way in which a group can 'speak' about a subject by insisting on silence about that subject").
382. See Danielle Keats Citron, Technological Due Process, 85 WASH. U. L. REV. 1249, 1302 (2008) (discussing the comparative costs and benefits of rules versus standards).
383. Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002).
384. Id. at 154-59 (Sotomayor, J., dissenting).
385. See Jaschik, supra note 15
386. Of course, the First Amendment poses no bar to disciplining her for her conduct, rather than her speech, if she is found to have engaged in discrimination on the basis of sexual orientation while on the job
387. See supra notes 54-69 and accompanying text
388. For example, private employers as principals are held to "own"-and thus be held legally responsible for-the defamatory or otherwise intentionally tortious speech of their employees and agents. RESTATEMENT (THIRD) OF AGENCY § 7.08 (2006). This requires courts to determine whether "a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations." Id. § 2.03.
389. Rankin v. McPherson, 483 U.S. 378 (1987).
390. Id. at 381. Even though it occurred at work, the plaintiff's speech did not satisfy the test for government speech proposed in Part II because she was not hired to deliver a specific viewpoint on the part of the government; indeed, her speech would not even fall within Garcetti's much more government-friendly "pursuant to official duties" test.
391. See id. at 401 (Scalia, J., dissenting) (emphasizing the sheriff's interest in maintaining a "public image consistent with his office's law enforcement duties").
392. Id. at 393 (Powell, J., concurring).
393. Id. at 400-01 (Scalia, J., dissenting).
394. Garcetti v. Ceballos, 547 U.S. 410, 426 (2006) (Stevens, J., dissenting).