! Ray- Essay Con

Question 1

FIRST AMENDMENT

Answer 1

Paul should assert claims based upon the First Amendment right to freedom of speech. He will likely succeed in his freedom of speech claim.

The First Amendment guarantees a right to freedom of speech and in the context of public employment an employee is entitled to comment on matters of public concern without fear of recrimination by her public employer, unless the comments would have a significant impact on her job, i.e. be attributed to the governmental entity. Paul is employed by the City government, a governmental actor, and was fired by the City based upon his comments in a TV interview. This will violate his right to free speech if it is found that the alleged corruption is a matter of public concern, which it appears to be. Although a strong argument may be made by the City that this was a purely private dispute between employer/employee and that therefore the “public comment” prohibition on free speech should not apply.
While the City has a strong argument, the Court should uphold Paul’s claim that he was dismissed from public employment for commenting on a matter of public concern, in violation of his first amendment right to free speech.

Question 2

Due Process

Answer 2

The Due Process Clause provides that a person may not be deprived of life, liberty or property without due process of law. An individual must have one of these interests harmed before he can maintain a due process claim. In regards to public employment, a property right, or entitlement, exists when an employee can only be terminated “for cause.” When such an entitlement exists, an individual is entitled to due process of law as determined by balancing (1) the importance of the interest to the individual; (2) the value of the process; and (3) efficiency concerns. Usually a “for cause” employee is entitled to notice and a hearing, or at least quick post-termination relief before his dismissal.

Paul, however, was still a probationary employee and entitled to be dismissed “at will;” he therefore has no property entitlement to his position and cannot maintain a right for due process before termination. Paul was not entitled to a hearing before his termination.

Question 3

First Amendment

P should assert that the placing these conditions on speech violates the protection afforded individuals under the Free Speech Provision of the First Amendment.

Answer 3

The First Amendment, incorporated to the states through the Due Process 14th Amendment, guarantees the right to free speech.

Where a regulation attempts to regulate the content of speech, it will be reviewed with strict scrutiny, and will presumably struck down as unconstitutional. In order to be valid, the government must show that the regulation- Because it is not subject matter neutral, strict scrutiny will be applied to the law. In order to meet strict scrutiny, it must be necessary to achieve a compelling government purpose and must be the least restrictive alternative. Under strict scrutiny, the law will likely be found unconstitutional.

OR 
Content- Neutral
- content neutral
-narrowly tailored
-leaves open alternative channels of communication.