The Garcetti decision for public employees
In 2006, the U.S. Supreme Court severely limited the free-speech rights of the nearly 22 million public employees in the United States. The Court declared in Garcetti v. Ceballos that when public employees engage in official job-duty speech, they have no free-speech rights. None.
This categorical rule means that even if a public employee blows the whistle on the worst on-the-job corruption, if it is considered job-duty speech, the employee has no constitutional claim.
Expansion of the government speech doctrine
The First Amendment often protects speakers from government censorship. It prevents the government from discriminating against different speakers based on their viewpoints. But, there is a difference between the government censoring private speech and the government exercising its own editorial discretion or speech control. Stated another way, the government can engage in its own speech free from constitutional constraint. This is called the government speech doctrine.
While the doctrine may sound innocuous, it can threaten speech immensely. Consider the specialty license plate decision from this past term, Walker v. Sons of Confederate Veterans. The case concerned Texas’s denial of a specialty license plate for the SCV. The state did so because many people are offended by the Confederate flag. A typical person seeing a specialty license plate assumes that the plate represents the speech of the driver or owner of the vehicle. But, the Court declared that specialty license plates are a form of government speech and rejected the First Amendment claim. This expansion of the government speech sanctions viewpoint discrimination.
Right Not To Be Offended
The First Amendment protects a great deal of offensive, disagreeable and even repugnant speech. While many people support this free-speech principle, they don’t act on it or support it in practice. There is a dissonance between the First Amendment ideal and the real. Nat Hentoff expressed it beautifully in his book titled “Free Speech for Me But Not for Thee.”
Many act as though offensive speech should be banned. Whether this is political correctness run amok or an enhanced sensitivity, the First Amendment is harmed in the process.
Mass governmental surveillance chills free speech to a frightening extent. It doesn’t just chill speech; it freezes it. As I explained in a prior column, this type of pervasive surveillance threatens freedom of speech and even thought. When Edward Snowden blew the whistle on a secret NSA surveillance program, it opened the eyes of many.
The First Amendment only limits governmental actors — federal, state and local. Private actors are not constrained by the Constitution generally. This is called the “state action” doctrine. It purportedly creates a zone of privacy and protects us from excessive governmental interference.
However, censorship from private actors — such as social networking sites or major corporations — can limit and chill speech as much as the government. Particularly when a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor.
The brilliant Erwin Chemerinsky once argued in a 1985 law review article that the state action doctrine should be revisited and abandoned. He explained that private censorship can be as harmful as governmental censorship.