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61 Brook. L. Rev. 1055 (1995)
Waters v. Churchill: Government-Employer Efficiency, Judicial Deference, and the Abandonment of Public-Employee Free Speech by the Supreme Court

handle is hein.journals/brklr61 and id is 1065 raw text is: WATERS v. CHURCHILL:'
GOVERNMENT-EMPLOYER EFFICIENCY, JUDICIAL
DEFERENCE, AND THE ABANDONMENT OF
PUBLIC-EMPLOYEE FREE SPEECH BY THE
SUPREME COURT
INTRODUCTION
The speech and assembly clauses of the First Amend-
ment2 allow for the expression of individual opinion, the explo-
ration of conflicting ideology and belief, and the preservation of
a representative democracy.3 While the Supreme Court ac-
1 114 S. Ct. 1878 (1994).
2 Congress shall make no law respecting the establishment of religion, or pro-
hibiting the free exercise thereof, or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the Gov-
ernment for a redress of grievances. U.S. CONST. amend L The First Amendment
is applicable to state actors through the Fourteenth Amendment. Gitlow v. New
York, 268 U.S. 652, 666 (1925) (UFor present purposes we may and do asume
that freedom of speech... protected by the First Amendment from abridgement
by Congress ris] among the fundamental personal rights and liberties' protected by
the due process clause of the Fourteenth Amendment from impairment by the
States.).
3 Justice Holmes articulated the importance of free speech values in shaping
the conceptual framework of the Constitution in his compelling dissent in Abrams
v. United States, 250 U.S. 616 (1919):
[W]hen men have realized that time has upset many fighting faiths, they
may come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached by
free trade in ideas-that the best test of truth is the power of the
thought to get itself accepted in the competition of the market and that
truth is the only ground upon which their wishes safely can be carried
out. That at any rate is the theory of our Constitution.
Id. at 630. See also Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J,
concurring):
Those who won our independence believed . . . that freedom to think as
you will and to speak as you think are means indispensable to the dis-
covery and spread of political truth; that without free speech and assem-
bly discussion would be futile; that with them discussion affords ordinari-
ly adequate protection against the dissemination of noxious doctrine; that
the greatest menace to freedom is an inert people; that public discussion
is a political duty, and that this should be a fundamental principle of the

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