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54 UCLA L. Rev. 1463 (2006-2007)
Free Speech Rights That Work at Work: From the First Amendment to Due Process

handle is hein.journals/uclalr54 and id is 1475 raw text is: FREE SPEECH RIGHTS THAT WORK AT WORK: FROM THE FIRST AMENDMENT TO DUE PROCESS Cynthia Estlund In the workplace, institutional context clearly affects the shape of constitutional rights. That is underscored by the U.S. Supreme Court's recent decision in Garcetti v. Ceballos. In denying First Amendment protections to public employees when they speak in the course of doing their jobs, Garcetti gets it wrong; but the right answer to the Garcetti problem is not so obvious. This Article proposes a due process solution to the Garcetti problem that better accommodates the interests of employers and employees than any of the positions taken within the Court in Garcetti. Indeed, due process might provide a better framework for the larger universe of public employee free speech controversies. As compared to current law, with its all-or-nothing recourse to federal litigation, the broader but flatter protections of a due process approach would smooth out some of the troubling cliff effects and distortions that current doctrine creates; it would be more compatible with workplace structures and relationships; and it might afford more reliable free speech rights for employees. Whether the due process solution would work as hoped turns in part on whether it would prove too compatible with prevailing workplace norms and too deferential to managers to afford the protection that whistleblowers, dissenters, and the public need. This question echoes broader concerns about self-regulatory or reflexive models of modern law of which the due process solution is an example. The idea that institutions matter, and should affect the shape of constitutional rights, is likely to lead toward further institutional self-regulation. That is a perilous path unless we find ways of encouraging institutions to internalize public values and constitutional norms, while maintaining an external check on those institutions that reinforces rather than undermines effective self-regulation. IN T RO DU CTIO N ........................................................................................................... 1464 1. A BRIEF SURVEY OF THE LANDSCAPE OF PUBLIC EMPLOYEE SPEECH RIGHTS ....... 1465 II. GARCETTI AND SPEECH-THAT-IS-THE-JOB .......................................................... 1470 * Catherine A. Rein Professor of Law, New York University School of Law. For their very thoughtful comments on drafts of this Article, I would like to thank the participants in the UCLA Law Review Symposium, Constitutional Niches: The Role of Institutional Context in Constitutional Law, and in faculty workshops at the Case Western Reserve University School of Law, the Georgetown Law Center, and the University of Georgia School of Law. Part of the analysis herein, especially in Part IV, was first set out in Cynthia Estlund, Harmonizing Work and Citizenship: A Due Process Solution to a First Amendment Problem, 2006 Sup. Ct. Rev. 115 (2007). 1463

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