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Rutgers-Newark SPAA Case Simulations Portal for Public and Nonprofit Sectors


Rutgers-Newark School of Public Administration and Affairs

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Peer Reviewed



Ceding a portion of one’s right to free speech has long been an expectation of public service, but social media has facilitated new forms of conflict, testing the bounds of acceptable private behavior. Though technological innovation has far outpaced slowly evolving legal doctrines, a number of precedents may be used as general guidelines as to acceptable forms of employee speech. The U.S. Supreme Court uses the Pickering Balance Test, a proposition by which an official’s speech is defensible if one speaks on an issue of public concern, and such actions do not disrupt the efficiency of agency operations. Garcetti vs. Ceballos (2007) extended this axiom to define that internal processes (particularly personnel matters) do not fit this distinction, and thus speech on these issues may not be afforded protection. This paper provides a brief assessment of these legal doctrines by reviewing three case studies. First, Hispanics United explores the distinction between individual and collective forms of speech online, the latter of which is protected under National Labor Relations Act. Then, we examine two teacher firings that have evidenced an inconsistent application of these doctrines by administrative judges, as detailed within the Rubino and O’Brien cases. The divergent outcomes can largely be attributed to nature of the offending speech, the publicness of the conflict, and the loss of trust between the public employee and the community they serve.


Public Affairs, Public Policy and Public Administration

Available for download on Thursday, January 23, 2020

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