Publication Date

2018

Abstract

Alexander Meiklejohn the iconic First Amendment scholar who expounded the democratic selfgovernment theory of the freedom of speech posited that for democratic selfgovernment to function the voters themselves must possess the information necessary to hold the government accountable Yet the information necessary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself and government officials often prove highly reluctant to share information that reflects badly on them and their work The lack of critically important information about the government's performance makes it difficult if not impossible for voters to hold government accountable on Election Day To date the federal courts have failed to recognize the crucial role that government employees often play in providing voters with the information necessary to make wise electoral decisions The ConnickPickering doctrine conveys only modest protection on government employees who engage in whistleblowing speech Moreover this doctrine fails to take into account directly the value and importance of whistleblowing speech to voters Whistleblowing Speech and the First Amendment calls for the recognition of a new subcategory of government employee speech whistleblowing speech and proposes more rigorous First Amendment protection for such speech Simply put contemporary First Amendment theory and practice fails to provide sufficient protection to government employees who engage in whistleblowing speech that calls the body politic's attention to wrongdoing corruption and malfeasance within government agencies If we want government employees to speak rather than remain silent stronger constitutional medicine than ConnickPickering will be requiredThis Article constitutes part of a longer booklength project The Disappearing First Amendment which Cambridge University Press will be publishing in 2019 The book will show how in a variety of important contexts free speech rights have contracted rather than expanded under the Rehnquist and Roberts Courts Salient examples include the speech rights of government employees as well as access to public property for expressive activities the speech rights of students and educators transborder speech and newsgathering and reporting activities The book posits that antipathy toward judicial discretion in free speech cases provides a partial explanation for the contemporary Supreme Court's inconsistent protection of First Amendment rights as does a more general willingness to tether First Amendment rights to the ownership of property

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