Amdt1.2.8.2.1 Freedom of Speech and the Role of the Government: Government as Employer

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates, unlawful or disloyal action. The Federal Government’s security investigation program has been tested numerous times and First Amendment issues raised, but the Supreme Court has never squarely confronted the substantive constitutional issues, and it has not dealt with the loyalty oath features of the federal program. ¹ The Court has, however, had a long running encounter with state loyalty oath programs. ²

First encountered ³ was a loyalty oath for candidates for public office rather than one for public employees. Accepting the state court construction that the law required each candidate to make oath that he is not a person who is engaged ‘in one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt, the Court unanimously sustained the provision in a one-paragraph per curiam opinion. ⁴ Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party. ⁵ For the Court, Justice Clark perceived no problem with the inquiry into Communist Party membership but cautioned that no issue had been raised whether an employee who was or had been a member could be discharged merely for that reason. ⁶ With regard to the oath, the Court did not discuss First Amendment considerations but stressed that it believed the appropriate authorities would not construe the oath adversely against persons who were innocent of an organization’s purpose during their affiliation, or persons who had severed their associations upon knowledge of an organization’s purposes, or persons who had been members of an organization at a time when it was not unlawfully engaged. ⁷ Otherwise, the oath requirement was valid as a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty and as being reasonably designed to protect the integrity and competency of the service. ⁸

In the following Term, the Court sustained a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated; the statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification. ⁹ Justice Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the state in its public school system except upon compliance with the state’s reasonable terms. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. ¹⁰ A state could deny employment based on a person’s advocacy of overthrow of the government by force or violence or based on unexplained membership in an organization so advocating with knowledge of the advocacy. ¹¹ With regard to the required list, the Justice observed that the state courts had interpreted the law to provide that a person could rebut the presumption attached to his mere membership. ¹²

Invalidated the same year was an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment solely on the basis of organizational membership. Stressing that membership might be innocent, that one might be unaware of an organization’s aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims. ¹³ But subsequent cases firmly reiterated the power of governmental agencies to inquire into the associational relationships of their employees for purposes of determining fitness and upheld dismissals for refusal to answer relevant questions. ¹⁴ In Shelton v. Tucker, ¹⁵ however, a five-to-four majority held that, although a state could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the state’s interests, and had a considerable potential for abuse.

The Court relied on vagueness when loyalty oaths aimed at subversives next came before it. In Cramp v. Board of Public Instruction, ¹⁶ it unanimously held an oath too vague that required one to swear, inter alia, that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party. Similarly, in Baggett v. Bullitt, ¹⁷ the Court struck down two oaths, one requiring teachers to swear that they will by precept and example promote respect for the flag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government, and the other requiring all state employees to swear, inter alia, that they would not aid in the commission of any act intended to overthrow, destroy, or alter or assist in the overthrow, destruction, or alteration of government. Although couched in vagueness terms, the Court’s opinion stressed that the vagueness was compounded by its effect on First Amendment rights and seemed to emphasize that the state could not deny employment to one simply because he unintentionally lent indirect aid to the cause of violent overthrow by engaging in lawful activities that he knew might add to the power of persons supporting illegal overthrow. ¹⁸

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell ¹⁹ involved an oath that as supplemented would have been violated by one who knowingly and willfully becomes or remains a member of the communist party . . . or any other organization having for its purposes the overthrow by force or violence of the government with knowledge of said unlawful purpose of said organization. The law’s blanketing in of knowing but guiltless membership was invalid, wrote Justice Douglas for the Court, because one could be a knowing member but not subscribe to the illegal goals of the organization; moreover, it appeared that one must also have participated in the unlawful activities of the organization before public employment could be denied. ²⁰ Next, in Keyishian v. Board of Regents, ²¹ the oath provisions sustained in Adler ²² were declared unconstitutional. A number of provisions were voided as vague, ²³ but the Court held invalid a new provision making Communist Party membership prima facie evidence of disqualification for employment because the opportunity to rebut the presumption was too limited. It could be rebutted only by denying membership, denying knowledge of advocacy of illegal overthrow, or denying that the organization advocates illegal overthrow. But legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations. ²⁴ Similarly, in Whitehill v. Elkins, ²⁵ an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.

More recent cases do not illuminate whether membership changes in the Court presage a change in view with regard to the loyalty-oath question. In Connell v. Higginbotham ²⁶ an oath provision reading that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence was invalidated because the statute provided for summary dismissal of an employee refusing to take the oath, with no opportunity to explain that refusal. Cole v. Richardson ²⁷ upheld a clause in an oath that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method upon the construction that this clause was mere repetition, whether for emphasis or cadence, of the first part of the oath, which was a valid uphold and defend positive oath.

Government as Employer: Free Expression Generally

Abolition of the spoils system in federal employment brought with it restrictions on political activities by federal employees. In 1876, federal employees were prohibited from requesting from, giving to, or receiving from any other federal employee money for political purposes, and the Civil Service Act of 1883 more broadly forbade civil service employees to use their official authority or influence to coerce political action of any person or to interfere with elections. ²⁸ By the Hatch Act, federal employees, and many state employees as well, are forbidden to take any active part in political management or in political campaigns. ²⁹ As applied through the regulations and rulings of the Office of Personnel Management, formerly the Civil Service Commission, the Act prevents employees from running for public office, distributing campaign literature, playing an active role at political meetings, circulating nomination petitions, attending a political convention except as a spectator, publishing a letter soliciting votes for a candidate, and all similar activity. ³⁰ The question is whether government, which may not prohibit citizens in general from engaging in these activities, may nonetheless so control the off-duty activities of its own employees.

In United Public Workers v. Mitchell, ³¹ the Court answered in the affirmative. While the Court refused to consider the claims of persons who had not yet engaged in forbidden political activities, it ruled against a mechanical employee of the Mint who had done so. The Court’s opinion, by Justice Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights, ³² but it based its decision upon the established principle that no right is absolute. The standard by which the Court judged the validity of the permissible impairment of First Amendment rights was a due process standard of reasonableness. ³³ Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell. ³⁴ In Civil Service Commission v. National Association of Letter Carriers, however, a divided Court, reaffirming Mitchell, sustained the Act’s limitations upon political activity against a range of First Amendment challenges. ³⁵ The Court emphasized that the interest of the government in forbidding partisan political activities by its employees was so substantial that it overrode the rights of those employees to engage in political activities and association; ³⁶ therefore, a statute that barred in plain language a long list of activities would clearly be valid. ³⁷ The issue in Letter Carriers, however, was whether the language that Congress had enacted, forbidding employees to take an active part in political management or in political campaigns, ³⁸ was unconstitutional on its face, either because the statute was too imprecise to allow government employees to determine what was forbidden and what was permitted, or because the statute swept in under its coverage conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. With respect to vagueness, plaintiffs contended and the lower court had held that the quoted proscription was inadequate to provide sufficient guidance and that the only further elucidation Congress had provided was in a section stating that the forbidden activities were the same activities that the Commission had as of 1940, and reaching back to 1883, determined are at the time of the passage of this act prohibited on the part of employees . . . by the provisions of the civil-service rules. . . . ³⁹ This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.

The Court held, on the contrary, that Congress had intended to confine the Commission to the boundaries of its rulings as of 1940 but had further intended the Commission by a process of case-by-case adjudication to flesh out the prohibition and to give content to it. The Commission had done that. It had regularly summarized in understandable terms the rules that it applied, and it was authorized as well to issue advisory opinions to employees uncertain of the propriety of contemplated conduct. [T]here are limitations in the English language with respect to being both specific and manageably brief, said the Court, but it thought the prohibitions as elaborated in Commission regulations and rulings were set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interests. ⁴⁰ There were conflicts, the Court conceded, between some of the things forbidden and some of the protected expressive activities, but these were at most marginal. Thus, some conduct arguably protected did under some circumstances so partake of partisan activities as to be properly proscribable. But the Court would not invalidate the entire statute for this degree of overbreadth. ⁴¹ Subsequently, in Bush v. Lucas ⁴² the Court held that the civil service laws and regulations constitute a sufficiently elaborate, comprehensive scheme to afford federal employees an adequate remedy for deprivation of First Amendment rights as a result of disciplinary actions by supervisors, and that therefore there is no need to create an additional judicial remedy for the constitutional violation.

The Hatch Act cases were distinguished in United States v. National Treasury Employees Union (NTEU), ⁴³ in which the Court struck down an honoraria ban as applied to lower-level employees of the Federal Government. The honoraria ban suppressed employees’ right to free expression while the Hatch Act sought to protect that right, and also there was no evidence of improprieties in acceptance of honoraria by members of the plaintiff class of federal employees. ⁴⁴ The Court emphasized further difficulties with the crudely crafted honoraria ban: it was limited to expressive activities and had no application to other sources of outside income, it applied when neither the subjects of speeches and articles nor the persons or groups paying for them bore any connection to the employee’s job responsibilities, and it exempted a series of speeches or articles without also exempting individual articles and speeches. These anomalies led the Court to conclude that the speculative benefits of the ban were insufficient to justify the burdens it imposed on expressive activities. ⁴⁵

In recent decades, the Court has eliminated the right-privilege distinction with respect to public employees' free speech rights. Application of that distinction to the public employment context was epitomized in the famous sentence of Justice Holmes’: The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. ⁴⁶ The Supreme Court embraced this application in the early 1950s, first affirming a lower court decision by an evenly divided vote, ⁴⁷ and soon after applying the distinction itself. Upholding a prohibition on employment as teachers of persons who advocated the desirability of overthrowing the government, the Court declared that [i]t is clear that such persons have the right under our law to assemble, speak, think and believe as they will. . . . It is equally clear that they have no right to work for the state in the school system on their own terms. They may work for the school system under reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. ⁴⁸

The same year, however, the Court expressly rejected the right-privilege doctrine in another loyalty case. Voiding a loyalty oath requirement conditioned on mere membership in suspect organizations, the Court reasoned that the interest of public employees in being free of such an imposition was substantial. There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. . . . [W]e need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory. ⁴⁹ The premise here – that there is a constitutional claim against dismissal or rejection – has faded in subsequent cases; the rationale now is that, although government may deny employment, or any benefit for that matter, for any number of reasons, it may not deny employment or other benefits on a basis that infringes a person’s constitutionally protected interests. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Such interference with constitutional rights is impermissible. ⁵⁰

However, the fact that government does not have carte blanche in dealing with the constitutional rights of its employees does not mean that it has no power at all. [I]t cannot be gainsaid, the Court said in Pickering v. Board of Education, that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. ⁵¹ Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reflecting on the administration of the school system. The letter also contained several factual errors. The problem in any case, Justice Marshall wrote for the Court, is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. ⁵² The Court laid down no general standard, but undertook a suggestive analysis. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day-to-day personal contact, that problems of discipline or of harmony among coworkers, or problems of personal loyalty and confidence, would arise. ⁵³ The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reflected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions that the community should be aware of. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. ⁵⁴

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy, ⁵⁵ sustained the constitutionality of a federal law that authorized the removal or suspension without pay of an employee for such cause as will promote the efficiency of the service when the cause cited concerned speech by the employee. He had charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, is without doubt intended to authorize dismissal for speech as well as other conduct. But, recurring to its Letter Carriers analysis, ⁵⁶ it noted that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statutory enactment all the myriad situations that arise in the course of employment, and inasmuch as the language used was informed by developed principles of agency adjudication coupled with a procedure for obtaining legal counsel from the agency on the interpretation of the law. ⁵⁷ Nor was the language overbroad, continued the Court, because it proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the government as an employer. . . . We hold that the language ‘such cause as will promote the efficiency of the service’ in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad. ⁵⁸

Pickering was distinguished in Connick v. Myers, ⁵⁹ involving what the Court characterized in the main as an employee grievance rather than an effort to inform the public on a matter of public concern. The employee, an assistant district attorney involved in a dispute with her supervisor over transfer to a different section, was fired for insubordination after she circulated a questionnaire among her peers soliciting views on matters relating to employee morale. The Court found this firing permissible. 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. ⁶⁰ Whether an employee’s speech addresses a matter of public concern, the Court indicated, must be determined not only by its content, but also by its form and context. ⁶¹ Because one aspect of the employee’s speech did raise matters of public concern, Connick also applied Pickering’s balancing test, holding that a wide degree of deference is appropriate when close working relationships between employer and employee are involved. ⁶² The issue of public concern is not only a threshold inquiry, but, under Connick, still figures in the balancing of interests: the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression and its importance to the public. ⁶³

On the other hand, the Court has indicated that an employee’s speech may be protected as relating to matters of public concern even in the absence of any effort or intent to inform the public. ⁶⁴ In Rankin v. McPherson ⁶⁵ the Court held protected an employee’s comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the President’s policies, If they go for him again, I hope they get him. Indeed, the Court in McPherson emphasized the clerical employee’s lack of contact with the public in concluding that the employer’s interest in maintaining the efficient operation of the office (including public confidence and good will) was insufficient to outweigh the employee’s First Amendment rights. ⁶⁶

In City of San Diego v. Roe, ⁶⁷ the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer’s expression does not qualify as a matter of public concern . . . and Pickering balancing does not come into play. ⁶⁸ The Court also noted that the officer’s speech, unlike federal employees’ speech in United States v. National Treasury Employees Union (NTEU), ⁶⁹ was linked to his official status as a police officer, and designed to exploit his employer’s image, and therefore was detrimental to the mission and functions of his employer. ⁷⁰ The Court, therefore, had little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU]. ⁷¹ This leaves uncertain whether, had the officer’s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern.

In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there is no protection – Pickering balancing is not to be applied – when public employees make statements pursuant to their official duties, even if those statements are about matters of public concern. ⁷² In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and he sued. The Supreme Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. ⁷³ The fact that the employee’s speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection. ⁷⁴ Rather, the controlling factor was that his expressions were made pursuant to his duties. ⁷⁵ Therefore, another employee in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering balancing.

In distinguishing between wholly unprotected employee speech and quasi-protected citizen speech, sworn testimony outside of the scope of a public employee's ordinary job duties appears to be citizen speech. In Lane v. Franks, ⁷⁶ the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator's employment in the government program. The employee challenged the termination on First Amendment grounds. The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the Pickering-Connick balancing test. ⁷⁷ The Court noted that [s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth. ⁷⁸ In so holding, the Court confirmed that Garcetti's holding is limited to speech made in accordance with an employee's official job duties and does not extend to speech that merely concerns information learned during that employment.

The Court in Lane ultimately found that the plaintiff's speech deserved protection under the Pickering-Connick balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer. ⁷⁹ After Lane, some question remains about the scope of protection for public employees, such as police officers or official representatives of an agency of government, who testify pursuant to their official job duties, and whether such speech falls within the scope of Garcetti.

The protections applicable to government employees have been extended to independent government contractors, the Court announcing that the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their protection. ⁸⁰

In sum, although a public employer may not muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can, ⁸¹ the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of public concern, then Connick applies and the employer is largely free of constitutional restraint. ⁸² If the speech does relate to a matter of public concern, then, unless the speech was made by an employee pursuant to his duties, Pickering’s balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties ⁸³ balanced against the employee’s First Amendment rights. ⁸⁴ Although the general approach is easy to describe, it has proven difficult to apply. ⁸⁵ The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for whistleblowers add to the mix. ⁸⁶