Not All First Amendments Are Equal
Originally posted 2012-09-19 14:27:34. Republished by Blog Post Promoter
(Actually, originally published on February 25, 2005…. long story.)
Instapundit writes, in reference to the Ward Churchill affair: “Eugene is right, of course, that the First Amendment prevents even untenured people being fired simply for ‘anti-Americanism,’ and he’s very right that academic freedom, given the political tenor of most campuses, does more to protect politically-incorrect people than the reverse. ”
The First Amendment does all that for an at-will employee? Not exactly. Here’s what Volokh says:
The Supreme Court has held that even government employees, including ones who are untenured, have a right to free speech; and courts have applied this especially strictly to scholarship and speeches by public university professors (and professional standards have generally reinforced this rule and applied it to private universities). If you’re untenured, you may be fired for any reason except your exercise of your constitutionally protected free speech rights (and your race, sex, religion, and the like).
Ah, government employees — that privileged caste! Essentially, the courts have added a constitutional dimension to the civil service reforms of the late 19th century. Whereas most of us can indeed be fired for expressing an opinion that an employer does not like, or that it fears its customers may not like, it’s much harder to can a civil servant (let’s not say bureaucrat) on the same grounds.
Does the First Amendment allow the government to use a public employee’s speech as the ground for discharge or denying a promotion? The Supreme Court’s answer to this question was at one time a simple “Yes.” Justice Oliver Wendell Holmes wrote in 1892, “There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman.” The so-called right/privilege distinction was maintained even as late as 1952 when, in Adler v Board of Education, the Court said, “You have a constitutional right to say and think as you will, but you have no constitutional right to work for the government.”
By 1967, however, the Court would note that “the major premise of Adler has been rejected.” In its place was a new premise: that the government ought not to be able to do indirectly what it cannot do directly. The Court took the position that public employment cannot be conditioned on a surrender of constitutional rights. The problem for the Court then became how to balance the government’s interest in maintaining an efficient public workplace against the individual employee’s interest in free expression.
Live and learn. I’ve been going on and on about how journalists don’t have their own little First Amendment, and it turns out, no, they don’t — but government employees do!
Professor Reynolds is a gummint employee, working as he does for the University of Tennessee. So we forgive him the imprecision — and so much more. But if you’re in the “private sector,” for heaven’s sake, don’t go and say something stupid!