Section 1983, the First Amendment, and Public Employee Speech: Shaping the Right to Fit the Remedy (and Vice Versa)
![handle is hein.journals/geolr35 and id is 955 raw text is: ARTICLE
SECTION 1983, THE FIRST AMENDMENT,
AND PUBLIC EMPLOYEE SPEECH:
SHAPING THE RIGHT TO FIT THE REMEDY
(AND VICE VERSA)
Michael L. Wells*
Constitutional rights do not exist in a vacuum, hermetically
sealed from the rest of the legal universe. Their value depends in
large measure on the remedial vehicles available for redressing
violations.' Yet the Supreme Court has interpreted 42 U.S.C.
§ 1983,2 the chief source of remedies for constitutional violations, in
isolation from the substantive rights the statute is used to enforce.3
* J. Alton Hosch Professor of Law, University of Georgia School of Law. The author
thanks Dan T. Coenen, Thomas A. Eaton, Amy Gellins, Richard A. Nagareda, and Rebecca
H. White for comments on a draft, and Candice Decaire and Paige Younkin for research
assistance.
' See, e.g., BarryFriedman, VWenRightsEncounterRealityEnforcingFderalRemedies,
65 S. CAL. L REV. 735, 735-36 (1992) (focusing on realist insight that meaningful discussion
of constitutional rights must address available remedies); Daniel J. Meltzer, Deterring
Constitutional Iolations by Law Enforcement OfiialsW Plaintiffs and Defendants as Private
Attorneys General, 88 COLUM. L. REV. 247, 262 (1988) (questioning whether system of
remedies is adequate to enforce federal norms).
2 42 U.S.C. § 1983 (1994) provides, in relevant part:
Every person who, under color of state law] ... subjects, or causes to be
subjected, any... person... to the deprivation of any rights... secured
by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
3 See John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 YALE LJ. 259, 259
(2000) (describing Cours doctrine as =one-size-fits.alw approach).
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Section 1983, the First Amendment, and Public Employee Speech: Shaping the Right to Fit the Remedy (and Vice Versa)
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