Document Type

Article

Publication Title

Indiana Law Journal

Abstract

Imagine a society whose citizens had free speech rights but no due process rights. The government could imprison citizens or banish them for any reason, or no reason at all, without notice or a hearing or proof of the charges; but it could not punish citizens based on their criticism of the government or other protected speech. The citizen who believed she had in fact been punished for speaking against the government could go to court and, if she could prove it, secure relief. How free would speech be in such a system? Would the citizens feel free to challenge the regime without fear of retaliation? The questions are not idle ones, for the system that I have described is essentially that which prevails in the American workplace for the at-will employee, both public and private. Employees in both the public and the private sectors have free speech rights: the Constitution, state and federal statutes, and the common law purport to protect employees' rights to speak on various matters free from employer retaliation. But this "system of freedom of expression" in the workplace lacks a crucial element of the system of freedom of expression in the society under the federal Constitution: many employees in both the public sector and the private sector enjoy no general legal protection against arbitrary discipline or discharge. They can be fired at will, for any reason or for no reason at all, subject to their ability to mount a legal challenge and to prove that the employer's true reason was the desire to punish the employee for protected speech (or was some other forbidden motive). Under this system, as in my hypothetical regime, the formal principle of freedom of expression may be largely illusory, for retaliation is readily cloaked in the guise of arbitrariness, and uncloaking it is likely to be too difficult, too time-consuming, and too costly to offer much reassurance to the typical employee. I will thus contend that at-will public employees-though they enjoy free speech rights against their employer under the First Amendment-are extremely vulnerable without the underpinnings of basic due process protections against unjustified discharge. The Supreme Court's recent decision in Waters v. Churchill' takes a small, but still too small, step toward recognizing this link between free speech and due process. Turning to the private sector, I will argue that there is a "system of freedom of expression" consisting of a patchwork of discrete protections against employer retaliation for socially valued speech. But I will argue that the virtual absence, except in the dwindling union sector, of any functioning system of fair treatment and due process renders those speech protections nearly meaningless for the vast majority of employees. By contrast, in workplaces where the employer must show an impartial decisionmaker that there is good cause for discharge, as in the typical unionized workplace, employees enjoy much greater freedom of expression-perhaps more than many public employees protected by the First Amendment.

First Page

101

Volume

71

Publication Date

1995

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