Public Employee Free Speech: The Policy Reasons for Rejecting a Per Se Rule Precluding Speech Rights

Abstract

Public employees do not enjoy the same free speech rights under the First Amendment as do ordinary citizens. The Fourth Circuit Court of Appeals recently adopted a virtual per se rule precluding free speech rights for public employees while they are performing ordinary job duties. This Note argues that such a per se rule both lacks policy justification and, more importantly, would undermine the purposes of the First Amendment by impeding academic freedom and permitting viewpoint discrimination. Rejecting the per se rule best preserves the free speech rights of public employees and in turn allows them to speak freely about governmental operations—an especially important function of public employees, who are firsthand witnesses to government activities.