A Democratic View of Public Employee Speech Rights

Abstract

The current law of public employee free speech rights amounts to a near-perfect storm of jurisprudential undesirability. The Supreme Court's imposition of a gate-keeping requirement that the speech have been made in one's role as citizen, and not in one's role as a government employee, has led to disturbing, and specifically, democracy-undermining results. The case law manages to combine murkiness with adverse impacts on the public accountability, openness, and transparency essential for genuine democracy. The cases commonly display ironic, paradoxical, deeply incongruous, and broadly counterintuitive reasoning and results. These outcomes indicate that the Court should revise its current approach to public employee speech so as to better protect democratic values.