Speech in the Public-Sector Workplace

Speech at work in some ways overlaps with concerns about employee privacy. Some issues, for example, like employer efforts to control workers' appearance, may implicate both speech and privacy. And employers' concerns may overlap--including issues of profitability and safety. But speech rights involve employees' abilities to define and express their views publicly--and associate with others who do the same. These activities may compromise the messages that employers seek to send, or interfere with the management of an employer's operation.

In employment law, the state action requirement creates a clear line between government and private-sector employees. Government employees may invoke a limited claim based on the Free Speech Clause of the First Amendment, whereas private sector employees must rely on a tattered patchwork of common law and contract protections. First, we will consider the rules that apply to government employees.