Whistleblowing Speech and the First Amendment

Alexander Meiklejohn, the iconic First Amendment scholar who expounded the democratic self-government theory of the freedom of speech, posited that for demo-cratic self-government to function, the voters themselves must possess the infor-mation necessary to hold the government accountable. Yet, the information neces-sary 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 im-portant 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 Connick/Pickering doctrine conveys only modest protection on gov-ernment employees who engage in whistleblowing speech. Moreover, this doctrine fails to take into account directly the value and importance of whistleblowing speech to voters. This Article 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 wrong-doing, corruption, and malfeasance within government agencies.

If we want govern-ment employees to speak, rather than remain silent, stronger constitutional medicine than Connick/Pickering will be required.