Professor Anne Marie Lofaso to Publish New Scholarship in Denver Law Review

For nearly two centuries, public-sector employment in the United States was governed by the privilege doctrine, which stripped public employees of their citizenship rights by denying them protection against adverse employment actions retaliating against their exercise of those rights. In 1967, in Garrity v. New Jersey, the United States Supreme Court reversed course and found, in the context of a government investigation of state police officers who allegedly fixed traffic tickets, that the state could not coerce those officers to waive their constitutional right to remain silent during the investigation by threatening to fire them if they did not answer questions posed to them. In Garrity's aftermath, the Court proceeded to develop its Pickering–Connick–Garcetti doctrine, which regulates the extent to which public employers may take adverse employment actions against public employees who engage in speech that disrupts the workplace or interferes with its efficient operation. Under that doctrine, the Court permits public employers to take adverse employment actions against their employees when the speech is not on a matter of public concern, Connick v. Myers, 461 U.S. 138 (1983); the speech is made pursuant to their job duties, Garcetti v. Ceballos, 547 U.S. 410 (2006); or the speech is on a matter of public concern but the employer’s managerial interests outweigh the employees’ constitutional rights, Pickering v. Board of Education, 391 U.S. 563 (1968).

The Pickering–Connick–Garcetti doctrine was stable for about half a century until the Court once again disrupted that equilibrium in two cases decided in the past five years. In Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018) (Alito, J.), the Court characterized union security clauses as unconstitutionally compelling speech from a non-member, union-represented public employees and therefore prohibited the parties from requiring those employees to pay any union dues. Then, in Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022) (Alito, J.), the Court characterized a public high school football coach’s post-game prayer on the 50-yard line as expression protected under the Free Exercise and Free Speech Clauses of the First Amendment and concluded that the school district unconstitutionally disciplined that coach, ignoring the disruptive and potentially dangerous effect that his speech had on those attending the game.

This Article traces these historical developments from our country’s inception to the present with an eye toward understanding the Court’s most recent jurisprudence and its effect on public employee speech. Our analysis draws the following five conclusions. First, the Court in recent cases has greatly narrowed the categorical exclusion from First Amendment protection for public employee speech expressed in the course of employees performing their job duties, thereby greatly narrowing Garcetti. Second, the Court through Janus has exempted compelled speech claims from the Pickering–Connick analysis. Third, the Court, through Kennedy, has also exempted religious exercise claims from the Pickering–Connick analysis. Fourth, the Court through Janus and Kennedy has significantly expanded the category of speech that constitutes speech on a matter of public concern, thereby narrowing Connick. Fifth, as demonstrated in Kennedy, the Court has greatly reduced deference to public employers’ managerial judgments in weighing employer interests in the efficient delivery of public services against constitutionally protected speech interests, even in cases where those managerial judgments are intended to prevent physical harm, thereby undermining public employer managerial authority.

Having drawn those conclusions, we turn to the Janus–Kennedy framework to assess several hypotheticals set forth in the Article’s introduction to show how these cases have shifted the analysis in favor of employee speech. Finally, we speculate whether this shift is part of a shift toward strengthening employee free speech rights, in general, or more cynically a shift toward speech that this particular Court favors—religious speech—and a shift away from speech that this Court disfavors—union speech.