The Free Speech Rights of Off-Duty Government Employees

Abstract

The Court’s jurisprudence with public employee speech rights leaves unclear what standard applies in cases where employees challenge government action taken in response to their “off-duty” expression. There remain so many flexible and undefined aspects to the multi-step inquiry the Court has fashioned for determining the scope of employee speech rights. When is an employee speaking as a “citizen” and not an “employee”? What is a matter of public concern, and is that inquiry even relevant in the context of off-duty expression? What speech is “work related”? How do we value the employee’s interest in engaging in her expression? How do make sense of the endless reasons government employees can give for wanting to suppress or punish that expression?

The Court’s jurisprudence on public employee speech rights lacks coherence because it is the result of decades of the Court reducing—without eliminating entirely—the speech rights that students and public employees enjoy. The aim of this article is not to suggest that the Court must entirely revamp its jurisprudence regarding public employee expressive rights, although that would probably not be a bad idea. Instead, it will approach the problems plaguing this area by focusing specifically on how Courts should handle First Amendment claims brought by public employees who have been disciplined as a result of their non-work-related expressive activities that take place outside of the workplace.

This Article contends that the Connick/Pickering framework should not apply in cases involving off-duty, non-work-related speech of government employees. Connick’s threshold public concern inquiry, which cuts off constitutional protection, is not appropriately tailored to address a government employer’s legitimate interests in controlling the expressive activities of its employees in such circumstances. In addition, Pickering’s balancing test, which weighs the value of the employee’s speech against the employer’s interest in restricting it, gives insufficient weight to the employee’s interest in expressive activities and places too insubstantial a barrier in the way of government censorship.

Instead, this Article argues that off-duty, non-work-related speech is entitled to presumptive protection under the First Amendment. Recognizing that it is never entirely possible to separate the citizen from the employee, or vice versus, the Article recognizes that an employer can overcome this presumption by showing that there are particular reasons specifically related to the employment relationship that warrant controlling employee expression. Such reasons include a showing that the employee is reasonably regarded as speaking for the employer even when off-duty (an extension of the government speech doctrine), or that the speech indicates that the employee is unfit to perform the duties of his position.