Current Free Speech doctrine does not sufficiently protect government employees’ First Amendment rights. There are two major flaws in the test implemented by the Supreme Court in order to find whether the First Amendment protects an employee. First, the Garcetti test, where a government employee loses First Amendment protection if her speech is pursuant to her official duty, is inadequate, overbroad, and should be done away with completely – or at the least interpreted more narrowly. Secondly, the Pickering balancing test is less of a balancing and more of a prioritization of the government’s interests and should be interpreted to harmonize both the employee and the government’s interests.
Is Social Media the New Era’s “Water Cooler”? #NotIfYouAreAGovernmentEmployee,
70 U. Miami L. Rev.
Available at: http://repository.law.miami.edu/umlr/vol70/iss3/8