Georgia Law Review, Vol. 35, No. 3 (Spring 2001), pp. 939-1019

Abstract

This Article is not about theories of free speech and how they bear on the public employment context, nor does it contribute to the academic debate over what the aims of public employee speech law ought to be. I take the Court at its word when it says that its aim is to give substantial weight to both the value of speech and the government's interest as an employer. Unlike Massaro and Ingber, I take it as a given that the government may insist on hierarchy and obedience to authority in the workplace. Unlike Rosenthal, I begin from the Court's premise that speech may deserve constitutional protection even if the government's desire to suppress it is based on a legitimate managerial objective. This Article argues that the Court has paid too little attention to the relationship between rights and remedies. It begins with the distinction between raising the Constitution defensively, as a "shield" against criminal prosecutions or other enforcement actions, and using the Constitution as a "sword" to obtain relief against government misconduct. When the government acts outside the judicial process, as in firing an employee, "shield-like" remedies are unavailing. As a practical matter, the free speech rights of public employees exist only to the extent a "sword-like" or "offensive" remedy--in the form of damages or injunctive relief or both--is available under [section] 1983. Part I describes the current doctrine bearing on the First Amendment rights of public employees. Part II discusses the [section] 1983 remedy available for violation of those rights and shows how the intersection of free speech doctrine and remedial principles thwarts the aims of both the First Amendment and [section] 1983. Part III identifies ways in which the fit between right and remedy could be improved by abandoning the current, highly fact-sensitive, First Amendment doctrine in favor of rules that require little inquiry into the facts. Part IV proposes changes in the remedial law on causation and damages developed under [section] 1983. Adopting these reforms would better achieve the objectives of both the substantive law of free speech and the remedial law of [section] 1983.