The intersection of First Amendment law and employment law can be fascinating — and can lead to extremely bizarre outcomes. In the last post, I discussed how the Court’s interpretation of the First Amendment led it to allow churches to, say, fire a minister for becoming pregnant, even where the religion itself has no inherent problem with pregnant ministers.
In this post, I want to discuss how the Court has interpreted the First Amendment to allow governments to retaliate against employees for exposing corruption — but only if the employee’s job is to expose corruption. Make sense? I didn’t think so.
The First Amendment prevents the government from retaliating against someone for their speech or taking actions aimed at suppressing future speech (same thing, really). Of course, you can “speak” without opening your mouth by, say, waving a flag or throwing money at political campaigns (hello, Citizens United). However, not all speech is protected — the government is free to punish you for yelling fire in a crowded theater or for advocating the overthrow of the American government, if there’s some real chance that your speech could lead to “imminent lawless action.”
So if I run around saying “fuck the draft,” for the most part, there’s nothing the government can do about it. But what if I’m a government employee? You can’t argue that firing someone isn’t punishment, and the government can’t punish people for speech. But governments are also employers, and your average employer is certainly allowed to fire me for saying pretty much anything. So, is there a good public policy rationale for treating governmental employers differently?
The courts and I agree that governments, like religious employers, are special and can’t be treated like every other employer. In my view, we should view governments as regular employers held to a higher standard (the First Amendment) because (a) we can (and we can’t when it comes to private employers) and (b) governmental employees are more likely to have knowledge of issues that we really care about — corruption, misspent tax dollars, etc — the disclosure of which adds to public knowledge of and debate about the proper functioning of our government.
The 1968 Supreme Court appears to have agreed with me on the second point. In discussing why a school teacher should be protected in raising concerns about the school budget, the Court noted:
Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.
The 2005 Supreme Court, however, was much more concerned that the government be allowed to run its business smoothy without too much interference from the legal system. In the Court’s view,“[w]ithout a significant degree of control over its employees’ words and actions, a government employer would have little chance to provide public services efficiently,” and we all love public services and would all like them to be efficiently provided. To address this concern, the Court created a standard which allows governmental employers to control how their employees do their jobs, regardless of the circumstances.
So, what does this mean?
The Court and I agree that governmental employers should be allowed to fire employees when they say things no one cares about. If you go running to the New York Times, saying that your boss smells bad, you should be allowed to be fired for that. If you’re complaining that the copier in your office jams all the time? Same thing.
Assuming you’re saying something important (i.e., you’re speaking on a “matter of public concern,” like corruption or governmental abuse), I argue that the government should only be allowed to fire you if your speech prevents you from doing your job. So, let’s say you’re a press secretary for a governmental department. If you go to a press conference and say that your departmental policies are an enormous waste of money, your department should be allowed to fire you. What you’re doing explicitly negates your job — you’re supposed to be telling the world your department’s point of view. Moreover, governmental departments would never be able to get any message across to the public if they always had to worry about their press secretaries running their mouths off.
But, let’s say you’re a cop and you discover that your supervisor is taking bribes. If your supervisor says, “tell Internal Affairs and I’ll fire you,” I’d allow the employee to sue.
The Court (and the now governing law) would not. Remember, the Court’s primary concern is that governmental employers be able to control how their employees do their jobs. This lead the Court to create the “official duties” test (see Garcetti)– if what you’re doing is “in pursuit of your official duties,” i.e., it’s part of your job, the government can fire you for it no matter what. This means that the press secretary can be fired, because speaking to the public is his job. This also means that the cop’s supervisor can say “tell Internal Affairs about my corruption and I’ll fire you.” The cop would have no recourse — keep his mouth shut or get fired, because any complaint to Internal Affairs about suspected corruption is part of his job.
Thus, under existing law, a prosecutor can be fired for complaining about corruption and improper search warrants, because being concerned that people aren’t being wrongly arrested is his job (these are the actual facts of the Garcetti case in which the Supreme Court laid out its rule). A nurse in a state-run psychiatric ward can be fired for complaining about the use of excessive force on patients, and a nurse in a transplant ward can be fired for complaining about a misallocated heart. A special education teacher can be fired for complaining that his disabled students are being deprived of equipment that they are entitled to under federal and local laws. And the reason they can be fired is that they are concerned about issues that they are paid to be concerned about, a fact explicitly mentioned in each case.
The Court’s approach means that those individuals who have the most information about governmental abuse and corruption are the least able to speak about it. If, say, a clerical employee at any of the above-mentioned workplaces had run across the same information and reported it, that employee would be protected from retaliation, because reporting such abuse is, presumably, not a part of a clerical employee’s job.
And, as we expand the scope of what a government official is required to report, we simultaneously expand the scope of speech that can get that employee fired.
If we do not require a teacher to report another teachers who takes nude photos with students, then any complaint the teacher makes is protected. His boss can’t threaten to fire him for reporting this, no matter how much his boss may want to cover it up.
But we, as citizens, are concerned about pedophiliac teachers. So we expand the scope of a teacher’s job description — any teacher who comes across such information has to report it up the chain of command. This now means that, if the principal wants to cover the situation up, he can say “If you tell the superintendant, I’ll fire you,” because telling the superintendant is now part of the teacher’s job.
If we, the concerned citizens, go further and pass a law requiring teachers to report such things to the authorities, then not only can the teacher be fired for telling the superintendant, he can be fired for going to DHS — even though we legally required him to do so. The courts explicitly relied on the mandatory reporting laws in both the case of the teacher exposing the coworker who took nude photos with his students, and in the case of the psychiatric nurse exposing her coworkers’ use of excessive force against mental patients, and in each case ruled that the employees were not protected from retaliation for making those reports.
This is all in pursuit of allowing the government to control its employees’ in performance of their jobs so that the government can run smoothly and provide all those public services we love. But the Court’s “official duties” standard not only leads to the above-mentioned irrational outcomes, it also incentivizes employees to subvert their internal chain of command, precisely because doing so is not part of their job.
Remember the cop who wants to expose his boss’s corruption? His boss can fire him for going to Internal Affairs. But if the cop goes straight to the New York Times, without giving the police department a chance to investigate the truth of the allegations, he can’t be fired. How this allows the government to run its operations more smoothly is beyond me.