Democracy depends on Free Speech

When Alexis de Tocqueville made his famous sojourn to America in the early days of our republic, he was struck by our commitment to democratic principles. In those days almost all government was local and conducted through various direct mechanisms like town meetings. Basically, elected officials, neighbors, and the curious would get together and discuss public issues until some type of consensus was reached. Tocqueville writes: “The health of a democratic society may be measured by the quality of functions performed by private citizens.”

But not anymore! California remains at the forefront of inane and unconstitutional laws.

Like many government employers, the City of San Diego faces severe financial distress related to public employee pensions. And so in 2012 a citizens’ group sought to reform the existing doomed pension plan via a ballot initiative publicly supported by then-Mayor Jerry Sanders. Speaking out on this pressing municipal issue, the mayor urged voters to approve the initiative.

In response, public employee unions charged the city with engaging in an unfair labor practice, as defined by a state statute! The argument ran that public officials, specifically the mayor of San Diego, have no protected First Amendment right to free speech when it comes to making statements regarding public pensions. Instead, they argue that officials are supposed to be muzzled and forced to communicate with the unions instead.

But such a position contradicts the basic requirements and mechanisms of a healthy democracy.

A well-functioning representative democracy depends on the ability of elected officials to speak their minds on matters of public importance. When labor statutes are interpreted to silence public officials on matters of public policy, including the terms and benefits of government employment, not only are the officials’ First Amendment rights violated, but the people they serve are denied the ability to know the officials’ positions so as to hold them properly accountable.

Additionally, the question of whether state statutes can muzzle public officials on matters involving labor law has become an especially important issue in California, which has taken extraordinary measures to silence public officials and employers in all matters concerning unions, particularly with regard to advising their employees of the First Amendment rights to refrain from joining or subsidizing public employee unions.

For more information, please see the brief that Pacific Legal Foundation filed in the U.S. Supreme Court in the case.