Journal of Information & Privacy Law

Does The Internet Lessen a Governmental Employee’s Right to Free Speech?

By Erin Walgrave, Production Editor on Monday, April 7th, 2014
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U.S. Supreme Court precedence has established that although the First Amendment’s right to the protection of free speech is strong, this right is not ironclad.  When an individual works for the public sector, his free speech is susceptible to more intrusion and more regulation since, in being an employee of the government, he represents himself as a member of the government and in so doing, his speech is connected to the government.  Thus, when a government employee publishes speech that might not be commonly recognized as appropriate, he still has a right to do so under our Constitution.  However, because the author is a government employee, then the government has a right to regulate that speech where “the employee’s interest in expressing [himself] on the matter [is] outweighed by any injury the speech could cause to the interest of the state, as employer, in promoting efficient and effective public service.”  Waters v. Churchill, 511 U.S. 661 (1994).  To balance these competing interests, the Court created the Connick-Pickering balancing test which balances (1) whether the speech is a matter of public concern and if so, whether that speech (2) has the potential to cause a substantial disruption in the governmental workplace.”  Connick v. Meyers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968).  After the employee establishes that his speech is a matter of public concern, the government must then prove that the speech has a potential to cause serious disruption and in order to do so, the speech must be widely known and commonly understood.

Therein lies the question: does the Internet affect this test?  Does the Internet make our private speech more “widely known and commonly understood?”  And if so, should this test still stand?  Does the fact that an individual’s private speech is published over the Internet make it so much more widely known that the government will more easily meet its burden in proving “a potential for serious disruption” as so many more will read it?   Should that matter?  In the case of Craig v. Rich Tp. High School Dist. 227, it did not play a huge deal, but should it?  Craig v. Rich Tp. High School Dist. 227, 736 F.3d 1110 (7th Cir. 2013).  Should the fact that a government employee decided to publish his speech over the Internet where thousands could retrieve it within seconds factor into the balancing test of whether or not said speech has a potential to cause a serious disruption?  Consider the fact that if  the same speech was published in a book, you would have to know specifically which title or author to search and you would have to physically retrieve the book, subject to a cost.  Whereas on the Internet a mere google search of a few key words could bring back the government employee’s speech within seconds, and without cost.  In that case, is a balancing test that questions how “substantial of a disruption” speech can cause by looking at how widely speech can be heard and how readily available it is really fair to the individual whose speech it is?  Or is that just a mere progression of society and the individual accepts this ease in the case against him by choosing to publish his speech over the Internet, as opposed to other options?

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