The Speech, Beliefs, and Affiliations of Government Employees

Governments tend both to regulate the expression of their employees and to make certain beliefs and affiliations disqualifying for government employment. We have already dealt in Chapter Five with those cases in which government has a message that it wishes its employees to deliver.

A. Public Employee Speech

The United States Supreme Court has decided a handful of cases involving public employee speech that led to discipline or termination but that would likely have been constitutionally protected had it been made by a private citizen. Although it is always hazardous to attempt to distill a general principle from such a small sample of cases, particularly when those cases are not unanimous and are decided over a span of years involving changes in the Court’s personnel, the cases appear to stand for the following proposition: Government may fire or otherwise sanction an employee for speech that impedes the government’s ability to perform its functions if the speech is not about a matter of “public concern” or is knowingly or recklessly false in its content.^[212]

There are basically two ways that public employee speech impedes the gov­ernment’s ability to perform.

Second, the speech may damage public confidence in the government’s per­formance. Our hypothetical teacher’s remarks about the curriculum and the school board (and perhaps, as well, her criticisms of her principal and col­leagues) could cause the public to lose confidence in the public schools, perhaps leading many to withdraw their children in favor of private schools.

This second way that public employee speech can impede governmental effectiveness is, however, a dubious basis on which to treat public employee speech as special. In the first place, any speech that has the potential for un­dermining public confidence in the government would seem of necessity to fall within the “matter of public concern” exception. In other words, only if the pub­lic is interested in and concerned about the subject of the speech will the speech affect its confidence in the governmental office in question. In the second place, public employee speech criticizing the government in a way that undermines public confidence is no different in this respect from similar speech by private citizens. The teacher’s criticism of the curriculum, for example, should damage public confidence no more and perhaps less than the same criticism made by an education expert not in the government’s employ. The criticism might be valid or invalid and, if the latter, honestly or maliciously voiced. But however the principles of freedom of expression constrain the government in dealing with private critics of its policies, its regulation of its own employees when they criticize its policies should be similarly constrained.

That brings us back to speech by public employees that undermines working relationships within the government office. Note that this reason for sanctioning public employee speech cuts across the public-concern/not-of-public-concern divide. The principal of a public school might have as difficult a time deal­ing with a teacher who has publicly criticized her curricular policies as with a teacher who has called her a jerk. The Supreme Court’s exempting speech on matters of public concern from sanction rests, then, on the view that the content of some speech (matters of public concern) is more important than maintaining the efficiency of governmental services, but the latter is more important than the content of other speech (matters not of public concern). Already in Chapter Two and again in Chapter Four, I have pointed out the violation of evaluative neutral­ity that this assignment of importance entails.^[213] Moreover, because these lines rest ultimately on judges’ evaluations of the importance of speech, which will frequently turn on their own policy views and assessments of accuracy, the line for a given item of speech will be drawn differently by different judges.

There is another point to be made about the “undermining governmental ef­ficiency” rationale for limiting public employee speech. Presumably, there are many valuable endeavors accomplished by private individuals working coop­eratively that may be impeded if relations among the citizens become strained due to the critical comments of some. Yet, leaving aside the special cases of defamation, fighting words, and infliction of emotional distress, governments do not seek to regulate remarks that might strain personal relationships, even when those remarks might jeopardize valuable cooperation. Why then does the Supreme Court permit the government to regulate the speech of its employees on such a ground?

Now one could reply that although government does not directly regulate all efficiency-impeding speech in the private sector, it generally permits pri­vate employers to fire or sanction employees whose speech undermines morale and negatively affects the private firm’s output.

Moreover, whenever we seek more from the private employment relation than economic efficiency - as when we seek nondiscrimination on the basis of race and sex - the government does not rely on private employers to police relationship-straining speech. Private employers may find racially or sexually hateful speech to be less costly than its regulation and so may not discipline employees who engage in such speech. In such cases the government may step in to force the employer to impose discipline or face liability for violation of laws forbidding racial or sexual discrimination.

This reply is probably adequate to explain why government is permitted to regulate speech by public employees that undermines working relationships, even though as a descriptive matter government does not regulate such speech in the private sector, at least where the speech’s negative effects are on efficiency rather than policies of nondiscrimination. Still, we could conclude that freedom of expression outweighs any loss of efficiency of governmental operations, and that government’s employees and managers should cultivate thick-skinned attitudes toward personal attacks by colleagues. Indeed, where government has attempted to impose speech restrictions within private firms through its antidiscrimination laws, those attempts have themselves been criticized by many as violations of freedom of expression.^[215]

The jurisprudence of public employee speech from other jurisdictions is sparse. The Canadian and European courts have decided a moderate number of such cases.

In concluding this subsection I want to point out that regulating public em­ployee speech that undermines intra-office morale represents just one more instance of a Track One regulation to prevent a one-step harm. In the jurispru­dence of the United States Supreme Court, the “public concern” exemption allows the Court to conclude that the harm to governmental efficiency from non-exempted speech always outweighs the value of the suppressed expression.

In principle, what the Court has done is no different from what it has done in drawing lines in other Track One domains. The “idea-expression” and “fair use” lines drawn by copyright law, to the extent the courts deem those lines to track freedom of expression principles^[217]; the “public concern/private concern” and “malice/no malice” lines that the courts themselves have drawn to reflect freedom of expression principles in defamation^[218]; and the Brandenburg welter of lines the United States Supreme Court drew to deal with advocacy of illegal action^[219] are of a piece with the lines drawn regarding public employee speech. Public employee speech is thus just one more Track One problem area. And just as with other Track One laws, evaluative neutrality forces freedom of expression into either extreme antagonism or extreme permissiveness toward government regulation of speech.

B. Public Employee Beliefs and Affiliations

Suppose a member of the Ku Klux Klan applies for a job as a policeman in a city heavily populated by racial minorities, Catholics, and Jews. Suppose a member of an organization that espouses pederasty applies to drive a school bus. Suppose a member of a political group that advocates the overthrow of the government by force applies for a job in a sensitive weapons facility. May government rely on such memberships, or the beliefs that such memberships evidence, as the determinative reason for refusing to employ such persons in those positions? Put differently, does the right to freedom of expression extend to freedom of belief, and if so, what does freedom of belief entail?

I believe this last way of putting the question is potentially misleading. It should be obvious that there is some connection between the freedom to express beliefs and the freedom to hold them. Governments, however, although they can affect what beliefs people hold through the variety of Track One, Two, and Three laws regulating expression, cannot directly change beliefs through sanctions on the threat thereof applied to the beliefs themselves apart from their expression. Rarely in modern societies is mere belief in something the basis of punishment.

Modern societies do, however, take numerous actions based on how people who hold certain beliefs are predicted to behave. In more repressive societies, people who hold certain beliefs are regarded as sufficiently dangerous to be ex­terminated or preventively detained in prisons or camps. Even in less repressive societies, however, forms of preventive, quarantine-like restrictions are applied on the basis of belief-as-evidence-of-likely-behavior.

Moreover, such restrictions are quite rational. Although there is nothing that prevents one from acting differently from how he would be predicted to act given his beliefs, the correlation between how one believes one should act and how one in fact acts is generally positive, and often quite strongly so. A policeman who endorses the Klan’s views of minorities and Jews is more likely to treat such persons disrespectfully or abusively than is someone who believes in racial and religious equality and integration. One who endorses the propriety of pederasty is more likely to commit it if left in control of children than one who believes it to be immoral. One who endorses the overthrow of the government by force is more likely to use sensitive government information for subversive purposes than one who opposes the overthrow of the government. Indeed, one who belongs to the opposition political party and endorses its, rather than the incumbent government’s, policies is less likely than a member of the party in power to work wholeheartedly to implement the government’s policies.

Thus, government acts quite rationally in taking into account persons’ beliefs in determining whether they are qualified to hold particular positions. And it acts quite rationally in concluding that what one says and the groups one joins are evidence of what one believes. Thus, one’s beliefs can be material to one’s fitness for a particular position; and one’s speeches and affiliations, even if not material, can be relevant to one’s fitness.

The United States Supreme Court’s decisions in this area are generally in line with this analysis. Thus, in several cases dealing with membership in the Communist Party, the Court concluded that endorsement of the Party’s goal of violent overthrow could disqualify one from practicing law and from working in a defense facility.^[220] In addition, the Court held that although bare mem­bership in the Party was not itself a permissible ground for disqualification, membership was relevant as evidence of endorsement and could be inquired into in determining fitness for sensitive positions.^{[221] [222]}

With respect to practices of political patronage, in which the party in power gives out government jobs and contracts only to party members, the Court reached similar results. The Court held that nonpolicymaking positions could not be awarded on the basis of party membership, but that policymaking posi­tions could be.¹¹

Finally, a public employee’s beliefs might be deemed disqualifying, not be­cause they suggest that the employee will be disloyal or less than wholehearted in carrying out the government’s mission, but because public reaction to those beliefs makes it impossible for the employee to carry out his tasks effectively. Suppose, for example, that the public employee or independent contractor who runs the food service at a heavily Jewish university believes in the propriety of Palestinian attacks on Israel. And although he has not publicly spoken out on this issue, his views become known, causing most of the students to boycott the university’s food service. May the employee or contractor be fired on the grounds that his beliefs have rendered him ineffective?^[223]

The United States Supreme Court has not addressed this issue directly.^[224] In the area of discrimination, however, it has shown reluctance to allow private prejudices to legitimate governmental decisions that take those prejudices into account, even though the private prejudices have tangible effects that would otherwise have been proper for government to consider. Thus, in determining the best interest of the child in custody and adoption cases, the Court has held that officials placing the children may not consider public reaction to interracial families, even if that reaction will affect the children’s prospects.^[225] And in deciding where to site a group home for the retarded, government may not consider the irrational fears of neighbors, even though the fears will adversely affect property values.^[226]

Should the same approach that the Supreme Court employs when govern­ment wishes to take into account private prejudices be extended to cases where the government wishes to take into account the public’s reaction to the beliefs of its employees and contractors? On the one hand, those beliefs do not indicate any likelihood that the employee will fail at his task due to his own reluctance to carry it out. On the other hand, those beliefs, once publicly known, do predict lack of success.

One might argue for the legitimacy of taking into account public reaction to beliefs by comparing provocative beliefs to public employee speech that undermines intra-office morale. Thus, one could say that when the employee calls his supervisor a jerk, the negative effect on their working relationship stems not from the speech itself, but from the employee’s underlying beliefs about the supervisor that the speech reveals. Had the supervisor discovered those beliefs other than through the employee’s speech - say, by examining a memo that the employee wrote to himself - the effect on the working relationship would have been the same. Thus, it is really the underlying beliefs, not the caustic words, that provide the legitimate basis for disciplining employees who criticize their colleagues and supervisors.^[227] And if the belief that one’s supervisor and colleagues are jerks is a legitimate basis for termination, why should not other beliefs the knowledge of which impedes effectiveness?

Having set forth the basic considerations and the jurisprudence regarding taking account of beliefs in government employment, I now want to ask how this topic relates to freedom of expression. One might think the relation to be obvious, given that what one believes is intimately connected to what one says and the groups one joins. And the courts frequently treat freedom of expres­sion and freedom of belief as if they were synonymous. Expression, member­ship, and belief are not, however, the same things, and how they differ matters.

Freedom of expression is, as I have argued, implicated only by those govern­mental actions designed to affect audiences’ beliefs by affecting the information and arguments that audiences receive. Freedom of belief, however, to the extent it differs from freedom of expression as I have defined it, might extend to two other types of government action. The first would be that of punishing people merely for believing certain propositions. Governments rarely do this because people do not have direct control over their beliefs. The second type of case that might implicate freedom of belief as opposed to freedom of expression is the type this subsection has discussed, namely, those in which the government preventively restricts or withholds positions from people because of their be­liefs. Such governmental actions may or may not be morally warranted. And there may or may not be a human right at stake in such actions. If there is a human right at stake, however, it is much more likely to be a right not to have government preemptively restrict one’s freedom and opportunities based on how it predicts one will choose to act in the future. The topic of preemptive action, both governmental and individual, and the moral rights it implicates, is an important and difficult one. Any right that restricts government from acting preemptively based on beliefs is, however, a separate right from the putative right of freedom of expression, which latter right is concerned with belief for­mation and not preemptive action. Even where these two issues overlap, as they do in cases where government regulates messages to prevent two-step harms, the freedom of expression issue arises because the government is trying to affect messages, whereas the preemption issue arises because of the causal connec­tion between the receipt of the message and the harm that purports to justify the restriction, a connection that goes message/predicted belief/predicted conduct. The freedom of expression issue here is logically separate from the preemption issue: one could conclude that Track One two-step harm regulations are viola­tions of a right of freedom of expression but not of any right against preemptive action; one could conclude the opposite; or one could conclude that both or neither right is violated by such regulations.

I conclude that the topic of this subsection - laws disqualifying persons from positions based on their beliefs - is outside the domain of freedom of expression, even though the courts frequently treat it as part of that domain. Instead, it raises issues going to the legitimacy of preemptive action by government, issues that only occasionally overlap with those of freedom of expression. Moreover, the same is true of the impact on association caused by government’s using persons’ associations as evidence of their potentially disqualifying beliefs: Any right of association implicated by such governmental action is separate from the right of freedom of expression, a point that I shall address more fully in the next section.

II.