Stevie Pactor: All should be free to participate in market of ideas

Featured Issue:

“Should teachers and other public employees who express personal and political opinions outside of their professional duties be held in account for them at work?”

We love our jobs, but they do not define us or limit the contributions we have to offer to family, friends and community. We likely share that in common with many of you, including those of you who happen to work for public employers. Your opinions about restaurants, your cute cat videos and your advocacy for causes you value all contribute to the marketplace of ideas that acts as the backbone of our democratic society.

As the Supreme Court has highlighted, any one of us might be the next Nathaniel Hawthorne or Herman Melville—government employees whose talents might have been lost had their employers been permitted to restrain their out-of-office speech.

Of course, it’s easy enough to talk about this in the abstract, especially by pointing to literary giants whose work is, at least today, uncontroversial. But in today’s society, musings on social media have value as entrants into the marketplace of ideas and as exercises of individual autonomy. That value is at its peak when the speech is about issues that are highly debated, controversial or thought-provoking.

The killing of Charlie Kirk set off a tidal wave of conversations, on social media and elsewhere, about—just to name a few topics—the tragedy of gun violence in America today, the importance of the rule of law and the values to which our society should aspire. We should seek to broaden and foster that exchange of ideas. We should also seek to recruit and retain government employees who are engaged in their communities and interested in contributing to the marketplace of ideas.

The First Amendment, as consistently and repeatedly confirmed by the Supreme Court, allows us to do both of these things at once. The First Amendment demands that an employee’s non-workplace speech cannot be subverted to a public employer’s preference that she be silent, or that she say something different, unless her speech negatively impacts the actual services the employer provides.

This is a stringent standard, and for good reason. We want the Department of Child Services caseworker to start a conversation by creating a TikTok against gun violence or in favor of the Second Amendment. We want the police officer to discuss on Instagram his view that public charter schools best serve students—or that they do not. Even if we disagree with what they have to say, there is value in knowing what other members of our communities think about important issues. There cannot be a marketplace of ideas unless everyone is allowed to participate in the marketplace.

The First Amendment protects a public employee’s ability to participate in this dialogue, and it does not condition its protection on politics, viewpoint or sensibility. This is both necessary and preferable. Where we work does not define the totality of our contribution or circumscribe the value we add to our communities.•

__________

Pactor is senior staff attorney at ACLU of Indiana. Send comments to [email protected].

Click here for more Forefront columns.