Article by Rosalie Berger Levinson
Frequently, we see headlines with “disclosures” being made by government employees who have become disappointed and disillusioned by the operation of government. The question of whether government employees with this inside, critical knowledge should have the right to come forward has been the subject of numerous Supreme Court and lower court decisions, as well as scholarly debate. Employees who criticize their supervisors or challenge the efficacy of departmental policies inevitably trigger the animosity of their superiors and thus face the likelihood of being subjected to transfers, negative evaluations, harassment, or possibly termination. On the other hand, for government to conduct its business in an orderly way, it must have employees who demonstrate loyalty, who seek to work within the system, and who strive to avoid internal conflicts and rebellions that may hamper the ability of government to deliver services to its citizens. A basic tension exists between the government's right to operate effectively and efficiently and the right of nearly twenty-one million federal, state, and local government employees to disclose what they perceive is government wrongdoing, graft, corruption, or simply ineptitude. Recognizing this tension, the Supreme Court in Pickering v. Board of Education held that courts must in each case “arrive at a balance” between these competing interests.
The history of protecting the speech of government employees has been one of expansion and subsequent contraction of rights. Although, since 1983, the Supreme Court has made it more difficult for employees to win retaliation cases, in general the Pickering test has survived. However, many appellate courts have been busy devising new tools for restricting the speech rights of government employees. Appellate court decisions, primarily from the Second, Fifth, Eighth, and Eleventh Circuits, have borrowed restrictive Title VII law and required that government employees, who seek to recover for retaliatory misconduct, demonstrate a significant alteration of the “conditions of employment” or a “material change in the terms and conditions of employment” in order to establish a prima facie case of a First Amendment violation. Thus, whistle-blowing employees who “merely” suffer involuntary transfers, suspensions with pay, public or internal reprimands, or other forms of retaliation not linked to terms of employment have been barred from pursuing their constitutional claims, even though such forms of retaliatory action might inhibit and deter them from engaging in protected speech. Further, such decisions send a dangerous message to government employers that they may penalize those who exercise their First Amendment rights provided their retaliatory conduct falls short of a “material change” in the terms or conditions of employment.
This Article traces the development of Supreme Court doctrine regarding the question of when retaliatory action should be viewed as an infringement of the free speech rights of government employees. For almost forty years, the Supreme Court has ruled that whenever retaliatory conduct chills the reasonable employee from engaging in speech, the threshold of constitutional injury has been met. This standard, which protects government employees from any retaliatory action that chills speech, should be preserved, leaving the “severity of the harm” inquiry to assess damages, not the question of liability.
About the Author
Rosalie Berger Levinson. Professor of Law, Valparaiso University School of Law. J.D. 1973, Valparaiso University School of Law; M.A. 1970, B.A. 1969, Indiana University.
Citation
79 Tul. L. Rev. 669 (2005)