In its First Amendment jurisprudence, the Supreme Court has long taken the view that the nature of the relationship between government and citizens varies across contexts. And the Court has repeatedly held that as the nature of this relationship varies so does the strength of the First Amendment’s protections for individual speech and expression. When an individual is employed by a state, the individual’s interactions with the state, with respect to that employment, is more in the nature of an employee-employer relationship than in the nature of a sovereign-citizen relationship. When an individual is a contractor of a state, the individual’s interactions with the state, with respect to the subject matter of the contract, is more in the nature of a contractor-contractee relationship than a sovereign-citizen relationship. As employees or contractors, individuals do maintain some First Amendment rights against the state: one does not stop being a citizen simply by entering public employment or by becoming a government contractor. But when it comes to the conditions of employment, or the terms of the contract, these First Amendment rights are significantly circumscribed because they must be balanced against the state’s legitimate interests to act as employer or proprietor.
The Court’s cases in these areas are quite clear, and they are numerous. Thus, as the Court held in Garcetti, “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” And, in Pickering, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” In particular, “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” See Engquist v. Oregon Dep’t of Agric. The same is true when the state acts, not as an employer, but as a “proprietor” in managing its own programs. See, e.g., NASA v. Nelson.
The upshot of these lines of cases is that public employees generally lack First Amendment protection for speech relating to the terms of their employment. Those engaged in carrying out the administration of state programs generally lack protection for speech relating to the terms of the programs they administer. This is true even though the public employee’s speech, directed to his employer, might be over a matter of “public concern” and might be plausibly be considered “petitioning” the government. Recall, as one among many examples, Garcetti: That case involved a deputy district attorney who thinks that his office has violated a defendant’s constitutional rights. When the deputy protests, he is demoted. Has he spoken on a matter of public concern? Certainly. Has he petitioned the government? Probably. Is his speech protected by the First Amendment? No.
Whether the homecare workers in Illinois are public employees (as seems clear to me) or simply paid by the state to carry out an important government program, their speech about the homecare program is entitled to the kind of circumscribed First Amendment protection that the Court routinely affords public employees and public contractors. And the state’s interests in carrying out these programs, in part through a collective bargaining regime (for the clear articulation of these interests, see the briefs here, here, and here), is entitled the same deference that the Court routinely affords states when they act as employers and proprietors.