Public Employee Speech and the Privatization of the First Amendment

Constitutional protection of public employee speech has been declining for the past forty years, yet the reason for the decline has remained elusive. This Article puts forward a novel theory situating public employee speech in larger structural transformations in governmental organization. It identifies a “public/private convergence,” the main feature of which is that public officials are increasingly viewed as private employees, resulting in a significant erosion of their free speech rights. This erosion is exacerbated by rising levels of privatization and civil service reforms exhibiting the same mode of thought: that public employees are no different from private employees. These trends have far reaching First Amendment implications that up until now have remained largely unexplored. Against this background, this Article argues that the privatization of public employee speech doctrine should be reconsidered for three main reasons. First, it overlooks the ways in which the public sector does not operate like the market. Second, it risks eroding the unique norms and culture the civil service aims to foster. Finally, it undermines a system of internal checks on state power that are especially important given the reduction in external monitoring capacity. Accordingly, the Article proposes two directions for reform: a doctrinal framework that resolves the problems with the Court’s current position, and a new governance framework that relies on internal regulatory channels to encourage public employee voice