Stevens proved consistent voice for public-employee speech

Monday, April 12, 2010

In his 34-year career on the U.S. Supreme Court, Justice John Paul Stevens has shown special solicitude for the free-speech rights of public employees. Stevens consistently voted for public employees in First Amendment cases, questioning whether employers’ interests should trump workers’ rights under the first freedom.

“Justice Stevens has provided a longstanding and passionate voice for the free-speech rights of public employees,” says University of Colorado law professor Helen Norton.

Robert Richards, founding director of the Pennsylvania Center for the First Amendment, agrees: “Justice Stevens has long recognized that a public employee does not forfeit his or her First Amendment speech rights simply by virtue of holding a government position.”

Stevens penned some significant majority opinions affirming the First Amendment rights of public employees. Stevens wrote the majority opinion in United States v. National Treasury Employees Union (1995), which struck down a federal law that prohibited federal employees from receiving honoraria for speaking and writing.

“Federal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas,” Stevens wrote, noting that Nathaniel Hawthorne, Herman Melville and Walt Whitman all worked for the federal government at some point during their literary careers. “The large-scale disincentive to Government employees' expression also imposes a significant burden on the public's right to read and hear what the employees would otherwise have written and said.”

Stevens wrote a dissent in Waters v. Churchill (1994) when the Court majority ruled that a government agency public employer does not violate the First Amendment when it reasonably believes that an employee’s speech was not protected. Stevens began his dissent with the words: “This is a free country.” He said the majority decision failed to give sufficient protection to employees fired for engaging in protected speech. “A First Amendment claimant need not allege bad faith; the controlling question is not the regularity of the agency's investigative procedures, or the purity of its motives, but whether the employee's freedom of speech has been ‘abridged.’”

Stevens authored another passionate dissent in the Court’s 2006 decision in Garcetti v. Ceballos, in which where a bare majority of the Court carved out a huge swath of employee speech from protection by holding that when employees speak in the course of their official job duties they have no free-speech shield. This ruling has left many whistleblowing employees without constitutional protection.

The Court majority in Garcetti said employees engage either in protected citizen speech or unprotected employee speech. Stevens questioned this sharp distinction between citizen and employee: “The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong.”

Marquette law professor Paul Secunda says, “The Court’s recent jurisprudence has literally cleaved away huge amounts of the former constitutional protection these employees received. Although by no means believing that the system cannot be improved, Justice Stevens would use a scalpel to refine the applicable tests to protect constitutional rights of public employees, and not use a meat-axe to render these public employee-citizens impotent to protect against the worst forms of government abuse, waste, and fraud.”

Secunda, who specializes in public-employee speech law, adds, “Whether writing for the majority in the NTEU case and making an important distinction concerning federal employees’ rights to speak openly on topics unrelated to their jobs, or whether writing a withering dissent in Garcetti concerning the lack of speech protection for employees when they speak pursuant to their job duties, Stevens understands the importance of permitting public employees to speak on issues that matter to the public.”

Even when not writing opinions in public-employee cases, Stevens consistently voted on the side of the worker in First Amendment disputes. He joined the dissent in Connick v. Myers (1983) when the Court majority ruled that New Orleans District Attorney Harry Connick could terminate an assistant district attorney for circulating a questionnaire questioning office policies. He joined the majority in Rankin v. McPherson (1987) in which the Court ruled that a Texas constable violated a clerical employee’s First Amendment rights when she made an offhand, negative remark about John Hinckley Jr.’s assassination attempt on then-President Ronald Reagan.

Justice Stevens’ record on public-employee speech cases is “consistent and clear,” says Richards. Norton echoes Richards, saying: “He has consistently resisted government’s growing efforts to control the speech of its employees, emphasizing not only government workers’ individual expressive interests but also the great value of their speech in informing the public of its government’s workings.”