Free Speech: Government Employees and Government Contractors

Abstract

Public administration is based in law. Practitioners need little reminding of this, as they are faced daily with issues that arise through lawsuits, judicial decrees, new legislation, and intergovernmental relations that are embodied in contracts (Koenig and Kise, 1996). scholarly literature reflects some of these relationships, with the primary focus being on omnibus litigation and individual cases of flagrant constitutional violations (Koenig, 1996). It is rarer to find analyses of cases that focus on the day-to-day concerns of the public administrator. analyses of this type that exist (Koenig and O'Leary, 1996; Baldo, 1990) are offered only on a sporadic basis, often in journals not read by professional public administrators. While increasing numbers of articles relate court decisions to the jobs of public administrators, the vast majority of the literature on the practical impacts of judge-made law remains outside the realm of most public administrators. focus of this column will be to fill that gap, to look at some of the cases that have an impact on how administration in United States governments is altered by judicial decisions. In future columns, cases from the dockets of the United States Supreme Court, the federal courts of appeals, and state supreme courts win be reviewed. Each column will be organized around a particular theme to make clear the trend of decisions in particular cases. Different themes will be adopted -- the environment, management, intergovernmental relations, and the budget -- and examined to assess the impact of judicial action on public administration. In each column, the focus will be on providing a succinct and legally correct explanation of the major issue or issues discussed the cases discussed and identifying potential effects of the decision on public administration. Little time will be spent on how the parties to the litigation have been influenced by the decision of the court, as those results are often too particularistic to be of use to other public administrators. Instead, ramifications of broad will be articulated, and the discussion of the implications of those decisions will focus on how public administration and public administrators may be forced to change in light of the decisions. purpose of this inaugural column is to provide a template of how future columns will be written. This will be accomplished by analyzing two First Amendment cases recently decided by the United States Supreme Court (Board of County Commissioners, Wabaunsee County, Kansas v. Umbebr, 116 S. Ct. 2342, _____ L.Ed.2d 1996); and O'Hare Truck Service, Inc. v. City of Northlake, 116 S. Ct. promise of freedom of speech is made in the First Amendment to the United States Constitution. idea of freedom of speech is one that most American citizens respect and believe to be one of the primary benefits of American citizenship. However, not all speech is protected under the First Amendment (Connick v. Myers 461 U.S. 138, 1984, and not every speaker is given the same level of protection. United States Supreme Court has held that all governments of the United States may at times terminate a contract of employment, even if that termination would serve to limit the expression of First Amendment rights of government employees, if political affiliation is pertinent to the position (Elrod v. Burns, 427 U.S. 347, 1976 [plurality opinion], and Branti v. Finkel, 445 U.S. 507, 1980). Some of the most notable limitations of First Amendment rights have come when the speech involved is made by an employee of the government and the government has an identifiable interest in not permitting the speech to be heard. Court, in Umbehr, notes, The First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern (2347). If termination occurs for some other reason than the speech in question, the decision to fire the employee will be upheld. …