NOTE: POLITICS AND THE NON-CIVIL SERVICE PUBLIC EMPLOYEE: A CATEGORICAL APPROACH TO FIRST AMENDMENT PROTECTION. Skip over navigation
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Copyright 1985 The Columbia Law Review.

Columbia Law Review

NOTE: POLITICS AND THE NON-CIVIL SERVICE PUBLIC EMPLOYEE: A CATEGORICAL APPROACH TO FIRST AMENDMENT PROTECTION.

APRIL, 1985

Columbia Law Review

85 Colum. L. Rev. 558

Author

James Kimmell, Jr.

Excerpt

INTRODUCTION

Non-civil service 1 public employees who participate in political campaigns 2 do so with an uncertain degree of constitutional protection. The Supreme Court has held that public employees cannot be discharged 3 solely because of their political affiliation unless they are engaged in confidential, policymaking positions. 4 Dismissals in retaliation for expression, however, are more problematic. In expression cases, the Court has held that the constitutionality of terminations depends upon whether the employees' interests in making the statements in question outweigh the government's interest in discharging them. 5 Courts have recently been confronted with the problem of determining how these two lines of precedent should be applied to political activity, 6 which combines elements of both political association and pure expression. This determination is significant, for the patronage and the pure expression cases employ radically different modes of analysis. While the Supreme Court has applied a categorical analysis in patronage cases, 7 it has relied on ad hoc balancing in the pure expression cases. 8

This Note considers how courts should best determine the scope of non-civil service public employees' first amendment right to engage in political activity. Part I describes the first amendment precedents governing political patronage and expression by public employees and examines their recent application by the Fourth and Fifth Circuit, respectively, in Jones v. Dodson 9 and McBee v. Jim Hogg County. 10 In Part II, the Note considers the relative advantages and disadvantages of ad hoc balancing and categorical analysis as ...
 
 
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