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.
Professor of Law, New York University School of Law.
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