Free Speech Rights Of Public Employees

The issue: May the government use the speech of a public employee as the basis for discharge or denying promotion? 

Does the First Amendment allow the government to use a public employee's speech as the ground for discharge or denying a promotion? The Supreme Court's answer to this question was at one time a simple "Yes." Justice Oliver Wendell Holmes wrote in 1892, "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman." The so-called right/privilege distinction was maintained even as late as 1952 when, in Adler v Board of Education, the Court said, "You have a constitutional right to say and think as you will, but you have no constitutional right to work for the government." 

By 1967, however, the Court would note that "the major premise of Adler has been rejected." In its place was a new premise: that the government ought not to be able to do indirectly what it cannot do directly. The Court took the position that public employment cannot be conditioned on a surrender of constitutional rights. The problem for the Court then became how to balance the government's interest in maintaining an efficient public workplace against the individual employee's interest in free expression.

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