Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression

Source: Helen Norton, Duke Law Journal, Volume 59 Number 1, October 2009

This Article identifies a key doctrinal shift in courts’ treatment of public employees’ First Amendment claims–a shift that imperils the public’s interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer’s interest in efficiently providing public services. In contrast, courts now increasingly focus on–and defer to–government’s claim to control its workers’ expression to protect its own speech.

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