Section 1983, The First Amendment, and Public Employee Speech: Shaping the Right to Fit the Remedy (and Vice Versa)

Authors

• Michael L. Wells, University of Georgia School of Law

Publication Date

2001

Abstract

Constitutional rights have little value in the absence of effective remedies for their violation, includingsuitsfor damages to redress past constitutional wrongs and for injunctive relief to prevent continuing and future violations. Recognizing this, the Supreme Court has, especially over the past forty years, constructed an elaborate body of remedial doctrine. The Court has often acted on the premise that the remedial law should be more or less the same across the whole range of constitutional rights. The problem with this approach is that, from a remedial perspective, there are differences among the real world contexts in which constitutional violations occur. Depending on the right that is at stake, a given remedial rule may be more or less effective. A better premise for the law of constitutional remedies would be to shape the doctrine according to the substantive context. By the same token, to the extent effective remedies are an important goal, substantive constitutional doctrine ought to reflect remedial considerations as well. With the aim of illustrating these themes, this Article explores the substantive and remedial law bearing on public speech.

Recommended Citation

Wells, Michael L. (2001) "Section 1983, The First Amendment, and Public Employee Speech: Shaping the Right to Fit the Remedy (and Vice Versa)," Georgia Law Review: Vol. 35: No. 3, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol35/iss3/7