First Amendment Rights of Government Employees: A Primer for Public Officials

Abstract

In 1967 the United States Supreme Court, in Keyishian v. Board of Regents, rejected on First Amendment grounds the premise . . that public employment may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action.' Keyishian dealt with the narrow issue of what have come to be known as loyalty oaths (i.e., a denial, disclosure, or renunciation of membership in a subversive organization) imposed as a precondition of public employment. Nevertheless, in the years since 1967 the general principle as to the sanctity of the constitutional rights, and in particular the First Amendments rights, of public employees set forth in that landmark case has been substantially expanded by the federal judiciary. Among the many offspring of Keyishian, none has attracted more attention, or caused more alarm in the public administration community, than the U.S. Supreme Court's decisions in Elrod v. Burns and Branti v. Finkel.2 The present and potential impact of those two cases on the institution of patronage employment and the public personnel management process would be difficult to overestimate. However, the question of the effect of the First Amendment rights of government employees on the public personnel management function extends well beyond the issues raised by Elrod and Branti. To operate effectively in the public sector today, wellinformed public officials must have an understanding of the full range of the limitations placed upon their authority in personnel-related matters by the 1st Amendment to the Constitution. Accordingly, it is the primary purpose of this article to provide a comprehensive working guide, based on relevant decisions of the U.S. Supreme Court and those of the various federal circuit courts of appeals, to principal First Amendment rights of public employees. Because the scope of the analysis below is limited to the constitutional rights of