LAW 532-001 – Constitutional Law II
Governments, through their employees, must engage in speech to execute their powers, however public employees also have First Amendment speech rights.
To resolve cases involving speech of government employees, courts look at three distinctions:
- Speaking as public employee or citizen
- Speaking about matters of public or private concern
- Speaking about matters within or outside the scope of employment
Depending on where the speech falls, the speech will either be afforded no protection or the government, employee, and public interests will be balanced to see if it should be protected.
The government is not allowed to penalize speech it disagrees with, but it is allowed to subsidize speech that it does agree with. (Though this contravenes Justice Jackson's statement in Barnette.)
- But it cannot fund speech just for the diversity of different private viewpoints.
- If it subsidizes everyone but a few people though, this will likely be found to be a penalty.
The government can also therefore discriminate, even based on viewpoint, in deciding who to hire to speak.