“Congress shall make no law … abridging freedom of speech.”
This quotation is from the First Amendment in the Bill of Rights. And while it seems straightforward, consider the words of Massachusetts Supreme Judicial Court Justice Oliver Wendell Holmes, thought by many to be one of the finest jurists of all time. In the 1892 case of McAuliffe v. City of New Bedford, Holmes wrote that with regard to a police officer’s First Amendment rights, he “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”
How do we reconcile these two statements? The answer lies in the dichotomy of the government as a sovereign versus the government as an employer. The sovereign’s ability to regulate content is subject to the highest level of judicial scrutiny, requiring a compelling government interest to regulate the speech (which is rarely found). The government as employer, however, may regulate the time, place, and manner of speech, and thus be subject to a lower level of judicial scrutiny. In such cases, the forum is a factor. As you will see, the judicial pendulum has swung back and forth based upon our social norms at the time. Read More…
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