When Can Government Punish Its Employees’ Off-duty Speech to Protect Its Own Expression?
Last week the Nebraska Supreme Court upheld the State Patrol’s discharge of a trooper discovered to have joined the Klan — and, more specifically, to have participated in off-duty web discussions with others associated with the Klan. The state court held “that Nebraska public policy precludes an individual from being reinstated to serve as a sworn officer in a law enforcement agency if that individual’s service would severely undermine reasonable public perception that the agency is uniformly committed to the equal enforcement of the law and that each citizen of Nebraska can depend on law enforcement officers to enforce the law without regard to race.” The court addressed only whether the distrct court had correctly vacated as contrary to public policy an arbitrator’s reinstatement award, declining to “revisit the arbitrator’s discussion of constitutional issues, although his conclusions on those issues [he had found that the State Patrol had violated the trooper’s constitutional rights] are highly suspect.”
But the First Amendment issues raised by cases like these deserve attention too. As I discuss in an article to be published by the Duke Law Journal this fall, this case illustrates courts’ increasing willingness to consider government workers to be speaking “as public employees” even when away from work, deferring to government’s assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views — just as voters often ascribe the views of a political candidate’s associates to the candidate himself. Implicit in courts’ reasoning is the premise that a public entity’s employment relationship with an individual who engages in certain expression — even when off-duty — communicates a substantive message to the public that the government is entitled to control. Examples include police officers discharged for appearing in or maintaining sexually explicit websites, firefighters fired for participating in a holiday parade that featured mocking racist stereotypes, and a university vice-president disciplined for writing a newspaper column questioning gay rights. In these cases, the off-duty speech was characterized as harmful not because of what it reflected about the public employee’s own ability to perform her job, but rather because of what it communicated about the government that employed her.
I agree that government concerns of this type are at times substantial — e.g., police departments’ interest in credibly communicating their commitment to evenhanded law enforcement regardless of race. But absent any limiting principle, this trend suggests that certain individuals may become unemployable for many government jobs purely because of their unpopular or controversial off-duty expression with which the government does not want to be associated – e.g., marching in a gay pride parade or blogging for or against abortion rights or immigration reform. This trend threatens to gain momentum with employers’ increasing ability to learn of workers’ off-duty speech through YouTube, Facebook and other social networking and communications technologies. While there may well be times that government should be permitted to control the off-duty speech of its workers when that speech actually imperils its own expression, attention to First Amendment values suggests such circumstances should be rare and well-examined.
In the article, I offer two proposals for determining when the First Amendment permits government to punish its workers’ off-duty speech to protect its own expression. First, the speech of certain public employees who serve as the voice and/or the face of the government — most prominently law enforcement officers — may be so identified with their government employer to justify government’s control of even their off-duty communications. Under this view, certain jobs trigger such strong public expectations such that those employees can never escape their governmental role to be perceived as speaking purely as private citizens even when off the job. To be sure, this is – or should be — a relatively small number of government jobs. This categorical framework would permit government to exert a great deal of control over the off-duty speech of employees in a few occupations, and very little control over the off-duty speech of all others.
On the other hand, rather than assuming that the off-duty speech of government employees in certain jobs – but only in those jobs – necessarily poses a substantial threat to government’s own expression, a more flexible contextual standard would instead require the government to prove such a threat on a case-by-case basis. Under this approach, an employee’s off-duty speech should be protected except in unusual circumstances where the context of the off-duty speech leads the public reasonably to associate the expression with the government — e.g., where the employee explicitly associates her off-duty speech with her government employer.
Both the categorical and contextual proposals have their strengths and weaknesses, as I discuss in the article. But while there may be no completely satisfying solution to this problem, I find both approaches preferable to the developing status quo, which is far too deferential to government’s expressive claims when seeking to control public employees’ off-duty speech.