Waters v. Churchill

The basic concern of the Court in Waters was the relationship between the government and its employees in regard to regulation of their speech and how it differs from government regulation of private citizens' free speech. As the Court recognized, various laws require agencies to accomplish specific tasks. Employees are hired "to help with those tasks as effectively and efficiently as possible." As a result, public employers have considerable flexibility to limit its employees' speech. When an employee deviates by speaking out disruptively, even on matters of public concern, the public employer must have some ability to correct the situation. The Court in Waters established a "reasonableness" test to protect employers who must take disciplinary actions.

Throughout history, the Court has held that a different relationship exists between the government and its employees than with private citizens. O'Connor wrote that in "many situations . . . the government must be able to restrict its employees' speech." Examples include offensive speech to the public or fellow employees, and participation in political campaigns. The finding in New York Times v. Sullivan (1964) that the First Amendment reflects the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open" does not necessarily apply to public employees. Providing a service to the public compels standards of conduct applied to public employees that would be considered too vague to apply to the common citizen. Therefore, the courts have provided greater flexibility to public employers in restricting activity of their employees than with the public at large regarding First Amendment protections.

As stated by Justice Souter, "First Amendment limitations on public employers . . . must reflect a balance of the public employer's interest in accomplishing its mission and the public employee's interest in speaking on matters of public concern." Some believed procedures for limiting the speech of employees in the public workplace as established in Waters served as a model for resolving harassment claims in private workplace settings as well. The Court ruling reinforced that speech disruptive to the mission of an organization may not be tolerated by the employer.

A year after the Waters case, the Supreme Court decided another public employee speech case in United States v. National Treasury Employees Union (1995). By amending the Ethics in Government Act of 1978, Congress sought to prohibit most executive branch federal employees from earning outside income by giving speeches or writing articles. The restriction applied even when the subject and second employer were totally unrelated to the employee's official public duties. In applying the balancing test, the Court found the law unconstitutional because the ban on the payment was essentially a ban on free speech. Payment served as an incentive toward free expression.

Added to the First Amendment constitutional protections of public employee's speech were statutory protections established by the Whistleblower Protection Act of 1989. The act further protected public employees from retaliation by employers for speaking out on matters of public interest about their employers and agency activities. The freedom of speech for public employees on matters of public interest in a non-disruptive manner was the focus of much activity through the 1990s.