- Collection:
- Georgia Law Review
- Title:
- State Constitutional Duty and Public Employee Speech
- Creator:
- Bauries, Scott R.
- Date of Original:
- 2025-01-01
- Subject:
- University of Georgia. School of Law
Law--Study and teaching
Georgia Law Review Association - Location:
- United States, Georgia, Clarke County, Athens, 33.96095, -83.37794
- Medium:
- articles
- Type:
- Text
- Format:
- application/pdf
- Description:
- Public employees do not sacrifice their constitutional rights by accepting public employment, but the doctrines surrounding public employee constitutional rights present a unique amalgam of rights and duties. Nowhere is this amalgam clearer than in the doctrine of public employee free speech. Under the federal Constitution’s First Amendment, public employees, notwithstanding their government roles, may speak out as citizens on matters of public concern, and any restrictions a government employer places on that speech must be justified by compelling workplace concerns that outweigh the speech interests of the employee and the interests of the public in access to relevant information. About two decades ago, the U.S. Supreme Court placed a limitation on this right to speak. Under the Court’s decision in Garcetti v. Ceballos, a public employee cannot claim First Amendment protection over speech the employee makes “pursuant to their official duties.” Although its later decision in Lane v. Franks clarified that this exception extends only to job-required expression, the exception nevertheless may extend much further. The article proceeds through four Parts. Part II briefly outlines the federal constitutional doctrines of public employee speech. Parts III and IV examine the text and history of the fifty state constitutions, the overlap that exists among them, and what appears to be a deeper set of protections than in the federal Constitution—one more sensitive to the speech of public employees. Part V then outlines the theoretical grounding for this article’s proposal: fiduciary political theory, which underlies the text and structure of all state constitutions. Building from that theoretical discussion, Part V continues by proposing and defending a novel approach to protecting both public employee speech rights and the governmental interests in providing services to the public. This approach builds from the text and underlying theory of state constitutions, while avoiding the somewhat arbitrary categorization that imperils federal doctrine. Finally, the article concludes in Part VI with some thoughts about what the analysis presented here might mean for other state constitutional rights with federal analogues.
constitutional law -- public employee -- First Amendment -- Law - External Identifiers:
- Metadata URL:
- https://digitalcommons.law.uga.edu/glr/vol59/iss4/6
- Holding Institution:
- Alexander Campbell King Law Library
- Rights:
-
