The Good, the Bad, and the Ugly: A Comparative Constitutional Analysis of Whistleblowing Speech, the Government’s Managerial Domain, and the Imperatives of Democratic Self-Government

By RONALD J. KROTOSZYNSKI, JR. Full Text.

Since issuing its 1968 landmark decision in Pickering, which first recognized that the First Amendment protects government employees’ speech about matters of public concern, the U.S. Supreme Court has proceeded to whittle away First Amendment protections for government employees. The Justices have done so by adopting a series of categorical exclusions to Pickering that all strongly favor the government as an employer and manager. These subsequent decisions have created a jurisprudential obstacle course that government employees must successfully run in order to invoke the Free Speech Clause at all. The current U.S. approach is plainly bad. However, it could be even worse—it could be ugly. In Australia, the High Court has given the government a green light to censor any and all government employee speech under viewpoint-based speech regulations. Thus, in today’s Australia, it’s perfectly fine for a public servant to praise the government but not to criticize it.

By way of contrast, in Canada, no categorical exclusions exist on the scope of constitutionally protected government employee speech, and the government must always be prepared to justify disciplinary actions based on a government employee’s speech activity. Canada’s approach is good—and clearly better than either the U.S. or Australian doctrines. By taking context fully into account, Canada’s government employee speech doctrine allows for courts to consider carefully how to reconcile the three competing interests at stake (namely, the government’s interest as a manager of its workforce, government employees’ autonomy interests as would-be speakers, and the collective interest We the People possess in access to government employee speech in general and whistleblowing speech in particular). Canada has built a better mousetrap; the federal courts should seriously consider reforming the Pickering/Connick/Garcetti framework to more closely resemble the Supreme Court of Canada’s holistic approach.