More on Free Speech vs. Consequence-Free Speech
My friend at the Squashed blog offered a further critique of some of my claims about Ron Brown and whether public employees can be fired for things they say. At bottom, the argument is that there’s some special protection for Brown’s speech because he works at a public university rather than a private one:
Free Speech does not mean you are free from all consequences—but it does mean that you are free from government consequences. People can criticize him. People can cheer against his team. But unless we dilute his free speech protections he shouldn’t be fired from a state institution for his speech, no matter how reprehensible it is.
Protection of free speech doesn’t mean that you’re protected from people thinking you’re a bonehead. It doesn’t mean you’re protected from people treating you like you’re a bonehead. But if it means anything, it has to mean that the government cannot persecute individuals based on the content of their speech. Even if it wants to. Even if the persecution would make things a lot more convenient for the government. Persecution includes firing.
This sounds really good, but it’s not quite right.
Pretty clearly, the Supreme Court has decided numerous times that government employees’ speech can be limited. If this wasn’t the case, then every bigot would be lining up to get even a secretarial or janitorial job at a university; they’d be safe from losing their jobs no matter what terrible things they said.
The question of freedom of speech, when it comes to public employees, turns on the two-part test articulated in the Supreme Court’s 1968 Pickering v. Board of Education decision (in which a teacher’s free speech right was upheld). The test looks like this:
First, the court would determine whether the speech at issue was of public concern by analyzing the form content and context of the speech. The second part of the test for First Amendment protection for speech by public employees was a weighing of interests between the public concern value of the speech and the government employer’s interest in suppressing the speech. The court would examine factors such as the time, place and context of the speech to assess whether the speech impinged upon a strong enough governmental interest to warrant the First Amendment limitation.
In addition to Pickering, there’s also its successor case, Connick v. Myers (1983). There, the speech under consideration was of public concern but the Court concluded that it was not protected because Myers’ “supervisor reasonably believed it undermined his disciplinary authority and jeopardized office harmony because of the personal attacks it contained.”
We don’t need to decide whether Brown’s speech is of public concern (the first part of the Pickering test) because it’s clear that the university’s interest in prohibiting its employees from the sort of speech made by Brown outweighs the public value in hearing it (the second part of the Pickering test) and because the university’s athletic director or its chancellor could reasonably believe that Brown’s speech jeopardizes campus harmony (the Connick test).
The university has a strong interest — expressed very clearly in its non-discrimination statement — in fostering an environment in which all people — irrespective of age, race, religion, gender, sexual orientation, and more — can feel safe and comfortable on campus. Brown’s statements in opposition to a non-discrimination ordinance because of his belief that homosexuality is a sin directly contravenes the university’s interest.
Because of the government’s interest as an employer, it can — in certain situations — take punitive action against its employees based on the content of their speech. There’s also the most recent — and surely the most controversial — case, Garcetti v. Ceballos (2006), in which the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Brown can still say whatever he wants to say. But there can be consequences — beyond the wagging of my finger — when he does so.