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Lesson 54 - Free Speech 15:

GOVERNMENT AS EMPLOYER

When the government regulates what its employees do -- on pain of dismissal or other discipline -- it has much more discretion than when it regulates the public at large.

The need for this is clear: For example, the government certainly can't imprison or fine people for generally being rude to one another, but the government must be able to discipline, say, postal clerks for being rude to patrons, or employees for being rude to their coworkers. On the other hand, most people agree that *some* protection for government employees is required -- the risk of losing one's job can be as powerful a deterrent to speaking as the risk of jail or a fine.

The rule the Court has settled on is this:

1. A government employer may generally discipline its employees (including dismissing them) based on anything they say that's merely of *private concern*. For instance, if you're fired for sending an e-mail to a coworker calling him names on a matter unrelated to any broad political issue, you have no viable federal free speech claim.
Generally, most work-related complaints are considered to be of merely private concern, even though the effective functioning of a government office is often a matter in which the public is actuall quite interested.

2.Where it comes to speech on matters of *public concern*, the government can discipline employees only if the *disruptiveness* (actual or potential) of the speech to the government outweighs its value to the speaker. Example: If a public spokesman for the Drug Enforcement Agency posts a message to a discussion list saying that he thinks many drugs are mostly harmless, he might be fired, because the message may disrupt his ability to do his job -- even if the message had an "I'm only speaking for myself, not the DEA" disclaimer.
What if a DEA agent who's not a public spokesman posts a similar message? Hard to tell; a court might go either way on the disruptiveness question.

Another example: Say a DEA agent posts a racist message to a discussion list, even without at all identifying himself as a DEA agent; this message is eventually seen by his coworkers, who become reluctant to work with him. Worse yet, the message is seen by his partner, who's of another race, and who's now not sure that the agent will zealously defend him if they're out in the field together. Here, a court would probably find sufficient disruptiveness to justify the DEA's firing the agent.

But all we can say is "probably." The test is very mushy, and gives little comfort either to employees or employers.

authors:
Larry LessigDavid PostEugene Volokh



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