Speech by Government Employees: Black Letter Rules

 

In his linked article, Prof. Volokh provides a nice summary of the black letter rules concerning speech by government employees:

 "Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

    the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
    the speech is on a matter of purely private concern, Connick v. Myers (1983), or
    the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs."