Academic journal article Albany Law Review

In Support of an Implied State Constitutional Free Speech Tort in Public Employment Retaliation Cases

Academic journal article Albany Law Review

In Support of an Implied State Constitutional Free Speech Tort in Public Employment Retaliation Cases

Article excerpt

I. Introduction

As a society, we consider freedom of speech to be one of our most cherished values. (1) Indeed, the first provision to be ratified in the Bill of Rights, the First Amendment to the U.S. Constitution, secures freedom of speech and the press against limitation or restriction by Congress. (2) As the Supreme Court has reminded us, free speech is a cornerstone of our democracy:

"Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political ... truth." ... [A] broad conception of the First Amendment is necessary "to supply the public need for information and education with respect to the significant issues of the times.... Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." (3)

Free speech by public employees on important public matters is an essential component of our right to free speech. (4) Government employee speech of public importance can cover the full gamut from providing opinions and advice about the workings of a governmental program, policy, or practice, to identifying and disclosing instances of perceived gross mismanagement, abuse or wrongdoing in the workplace. (5) Because of their intimate knowledge of how government programs operate, public employees have the ability to convey ideas and information that can improve government programs, and ensure that they are accountable to the public. (6) As the Supreme Court recently observed: "There is considerable value ... in encouraging, rather than inhibiting, speech by public employees. For '[government employees are often in the best position to know what ails the agencies for which they work.'" (7)

Despite the important contributions that public employees can make to ensuring that government programs operate efficiently and effectively, their ability to freely and frankly exchange information and ideas is often hampered by fear of job reprisals. (8) To make matters worse, coworkers, fearful of losing their jobs or suffering other adverse employment consequences because of perceived or actual reprisals taken against others who have spoken, become less willing to speak to others about important matters in the workplace. (9)

While the Supreme Court has recently observed that "[s]peech by citizens on matters of public concern lies at the heart of the First Amendment," and this includes "information related to or learned through public employment," (10) the Court has constructed a First Amendment standard in public employment retaliation cases that does not go far enough to protect public employee speech. This article will address some areas in which the First Amendment is not sufficiently protective of the free speech rights of public employees, and suggest that a more effective free speech cause of action be implied from article I, section 8 of the New York State Constitution.

A meaningful state free speech constitutional tort, with enhanced state standards, could encourage more expressive activity by public employees, which would benefit both the government and the public. (11) It could accomplish this objective by deterring efforts to chill free speech and providing compensation to victims of reprisals in situations that are not being adequately protected by the existing federal constitutional framework.

Part II of this article discusses the challenges that public employees face when they express their views on a government program or policy, or report perceived wrongdoing in the workplace. This part also touches upon the various interests at stake when public employees are encouraged to speak.

Part III of the article explores the First Amendment law in this area. It begins with a brief introduction and some historical background on the rights of public employees to speak in the workplace. …

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