Effects Of The Development Of The US Legislation Concerning Public Employees

The development of the US legislation concerning public employees raised the problem of the growing controversy between government needs and employees’ rights to the free speech. In this regard, Pickering, Connick and Garcetti v. Caballos cases are important cases that contributed to the consistent change in balancing government and employee interests and balancing of the freedom of speech and government interests in accordance with the US Constitution and legislation.

Pickering case was one of the first cases that raised the problem of the protection of basic employees’ rights and the respect to government interests. Pickering concerned the First Amendment rights of a public school teacher who claimed he had been unfairly terminated for exercising his right to free speech (Collier, 1987). The case revealed the vulnerability of public employees to the limitation of their right to the freedom of speech but, at the same time, the court took the side of the public employer because the public employee has uncovered the information that violated interests of the public organization, namely school district. As a result, the court admitted that the revelation of that information was harmful for the government interests, although the termination of Pickering’s position was perceived by many experts as unjust (Irons, 1999). The problem was just one point in the survey distributed by Pickering which allowed the court to find the survey to be harmful for the government interest, more specifically for the school district, where Pickering worked.

Connick case enhanced Pickering one in two major aspects. First, Connick confirmed that Pickering required a true balancing of interests and that the government’s interest deserved consideration equal to that shown to the interests of the employee (Kennedy, et al., 2003). Therefore, Connick case actually put the citizen and the government on the equal ground. As a result, employees working in public organizations gain the solid ground for the protection of their rights but, at the same time, the government obtained the similar position and the court attempted to balance the government and citizen interests. However, the problem of matching new court rulings to the US Constitution became obvious because the government virtually enhanced its role in the US legislation after court ruling in Connick case. In addition, this case created the precedent for the further enhancement of the position of the government that increased the risk of the further prevalence of government interests over interests of citizens.

Second, it clarified that Pickering did not make every aspect of working for a public employer a matter of public concern; though a public employee did not lose his or her constitutional right to comment on a matter of public concern, the employee also did not have a First Amendment right to criticize his or her employer on purely internal matters (Dizard, et al., 1999). Therefore, Connick case protected the basic Constitutional right of citizens to the freedom of speech and their interests were also protected under the new court ruling. The main point that contributed to the change of practice of employee-employer relations in the public sector was the protection of employees’ right to uncover issues that involve public interests and were public matters, while, on the other hand, the case did not allow employees to uncover information related to internal matters of public organizations. As a result, employees remained protected under the First Amendment in regard to their right to freedom of speech to uncover information relevant to the public matter, but the court ruling limited the First Amendment right of citizens in regard to internal matters of organizations.

In this regard, Garcetti changed the evaluation process for the First Amendment claims of public employees by emphasizing a different aspect of Pickering: the Court directed its attention to the first prong of the Pickering balancing test, “the interests of the [public employee], as a citizen, in commenting upon matters of public concern” (Kennedy, et al., 2003, 141). Garcetti case introduced specifications that offered very concrete definition of employees’ rights to uncover information concerning public matters. To put it more precisely, the court specified that they could comment on matters of public concerns only as a citizen but not as an employee. In such a way, the court attempted to reach objectivity in comments of employees and prevent them of possible subjectivity in their comments. If employees commented from the standpoint of employees, they could be subjective in their comments. For example, employees could revenge on their employers by uncovering sensitive information related to public matters. As a result, they would comment as employees rather than citizens. Instead, in case of Garcetti, the court decided that employees could comment on public matters only as citizens. In such a way, the court specified that employees can comment only as citizens but not employees. Hence, the court protected their First Amendment right and encouraged them to maintain their freedom of speech right and protected their Constitutional right as citizens.

The prioritization of citizenship as the main criterion for the protection of rights of US citizens under the First Amendment became very important because it clearly surpassed the employee-employer conflicting relations and shifted the employees’ First Amendment right to the citizen-public organization level. Otherwise, employees turned out to be in a different position compared to other citizens, if there were no specifications provided by Gacetti case. Employees’ rights were protected under Connick and Pickering, while other citizens turned out to be in a disadvantageous position. Instead, the court protected citizen rights under the First Amendment and ensured the protection of their freedom of speech right. At the same time, the issue remained unresolved concerning interests of the government and citizens, which was regulated by Connick case. Therefore, Gacetti enhanced previous regulations and introduced specifications that enhanced citizen rights and protected their Constitutional rights.

Furthermore, Gacetti case referred to the distinction in the protection of employees’ rights as employees and citizens. More specifically, the court ruled that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline (Kennedy, et al., 2003). Therefore, employees could not be protected under the First Amendment, if they made statements pursuant to their official duties. This is why the precise nature of the public employee’s duties is crucial to the scope of the employee’s right of speech and expression because they are not protected, if they are pursuant to their official duties.

Thus, the development of the US legislation and court rulings contributed to the protection of employees’ right to the freedom of speech and expression. However, cases discussed above reveal the shift toward balancing of interests of public employers and employees.

 

References:

Collier, C. (1987). Decision in Philadelphia: The Constitutional Convention of 1787. New York: Ballantine Books.

Dizard, J.E. et al. (1999). Guns in America: A Reader. New York University Press.

Irons, P. (1999). A People’s History of the Supreme Court New York: Penguin.

Kennedy, D.M. et al. (2003). The Brief American Pageant. New York: Wadsworth Publishing.

The Constitution of the United States of America. (2007). Retrieved from http://www.prenhall.com/schmalleger/constitution_frame.html

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