I was in Boston yesterday for oral arguments before the U.S. Court of Appeals for the First Circuit, which is the federal appeals court for Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico. Our case, Decotiis v. Lori Whittemore et al., involves the free speech rights of public employees. In this case, the employee is speech-language therapist who sometimes works for the State as an independent contractor. She spoke out about concerns she had about the interpretation of eligibility requirements, urging parents to contact a lawyer or an advocacy organization to help explain the rules and protect her rights, and for her trouble, her contract was discontinued.
Over forty years ago, the Supreme Court recognized the right of public employees to speak out on matters of public concern. In Pickering v. Board of Education, the Supreme Court protected the right of a public school teacher to write a letter to a local newspaper that was critical of the local school board. That scope of that right has gone through some adjustments over the years, but the core holding remains vital: just because someone is employed by the government does not mean she or he can be prohibited from criticizing the government. That protection does not apply, though, when a government employee is speaking as part of their employment, according to the Supreme Court's decision in Garcetti v. Ceballos.
We defend the rights of all kinds of speakers here at the ACLU of MAINE--protesters, artists, politicians, students--but in a democracy government employees need special protection. The government is ultimately accountable to us, but the only way we can hold the government accountable is if we know what the government is doing. Sometimes that knowledge comes from reading the law, or attending the legislature, but frequently the people in the best position to share with the public information about the operation (or disfunction) of a particular government program are government employees. It takes enormous courage to speak out about injustice, and the least we can do is to make sure that the law creates a space for such communication to occur without retaliation.