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Vanderbilt Law Review

First Page

993

Abstract

The term "public employer" is something of a legal oxymoron. Although the law has established a jurisprudence for the employer, consisting of a network of state and federal statutory requirements,' and a jurisprudence for the governmental body, governed by the Constitution, the public employer belongs to neither of these. It is an entity that functions as a private business, charged with maintaining an efficient and productive workplace. It is constantly under pres- sure to improve performance, and it is just as concerned with discipline, morale, and efficiency as any private employer. Yet it is also part of the sovereign and therefore considered a potential tyrant.

By the same token, the public employee has a split personality. As a citizen of the United States, the public employee is entitled to constitutional protections, including the right to free speech under the First Amendment. Yet as an employee of the government, the public employee is often under the control of her employer and may be expected to compromise those rights in order to contribute to the efficient functioning of the employer.

These dual roles create a conundrum for the courts. The issue of public employee free speech highlights the problem. A private employer may fire an at-will employee on the basis of her speech with no fear of legal repercussions. Yet a governmental entity is subject to the strictures of the First Amendment. When a government official fires an at-will employee because of speech, that official is arguably abridging that employee's freedom of speech. Public employment therefore necessitates a first amendment analysis that takes these paradoxes into account.

The Supreme Court originally considered the public employer's role as employer and the public employee's role as employee preeminent. The Court therefore altogether denied public employees' free speech rights in the context of employers' firing decisions.5 During the 1970s, however, the Court recognized the public employer's second identity as a state actor and provided a right of action for public employees fired on the basis of their speech. To establish the boundaries of that right, the Court had to balance the interest of the public employer as a private entity against the dangers of governmental censorship posed by the public employer as sovereign that the First Amendment was designed to prevent.

The Supreme Court has developed a two-step analysis that at- tempts such a balance. First, the Court determines whether the speech at issue is "of public concern," for only such speech merits protection under this framework. To the great consternation of lower courts and scholars alike, however, the Court has failed to provide a clear definition for "public concern." If the Court determines that the speech is of public concern, it moves to the second step of the analysis and weighs the employee's interest in speaking freely against the employer's interest in maintaining efficiency. This assessment balances the "value" of the speech against the potential for disruption to the workplace.

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