First Amendment Protection of Hybrid Personas Speaking in the Course of Their Employment: An Israeli Perspective

Introduction: The Anomaly of the Garcetti Case

The First Amendment protects, among other rights, the freedom of expression from government interference. The most basic element of freedom of expression is the right to freedom of speech, which allows individuals to express themselves without government interference. The Supreme Court demands substantial justification on the part of the government for interfering with the right of free speech. Individuals cannot be held liable for what they write or say if it is truthful or based on their honest opinion.

Nevertheless, the ability of private citizens and organizations to limit speech is not affected by the First Amendment. Private employers cannot be barred from dismissing an employee for controversial speech, unless statutory and common law remedies are available to the employee. This is because private employers cannot be told how to manage their employees.

When it comes to government employees, the situation is more complex. Like any other employer, the government has a legitimate interest in efficient operation of its offices and agencies. To do so, it may have to exercise control over its employees’ speech. The unacceptable result appears to be that the First Amendment extends less protection to government employees than to individuals employed by private employers. American law must balance these two interests. In a 5–4 ruling in Garcetti v. Ceballos, the Supreme Court formulated a triple test to decide whether a government employee’s speech is protected by the First Amendment. Justice Anthony Kennedy wrote for the majority.

First and foremost, government employees are protected by the First Amendment only when they are speaking as citizens. If their expression is pursuant to “official” job duties, they are not shielded from employer discipline. According to the majority in the Garcetti ruling:

[R]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

Justice Kennedy was concerned about the negative effects of permitting employees to bring First Amendment claims regarding speech made as part of the official duties in their jobs. Allowing such claims, in his opinion, “would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business.” Therefore, the Court distinguished speech that the government has paid its employees to deliver from speech delivered by the same individuals in their private capacities. The meaning of this ruling is dramatic: when the government acts as an employer, it has greater powers than when it acts as a sovereign. According to this test, many government employees who report on misconduct are not protected by the First Amendment.

Second, to receive constitutional protection, government employees speaking as private citizens must address a matter of public concern; otherwise, the First Amendment does not protect their expression. The reason is that federal courts are not expected to intervene in personnel decisions regarding employee speech that involves a matter “only of personal interest.” Speech is considered to regard a matter of public concern if it relates to a social, political, or community issue. The Supreme Court ruled that the question of “whether an employee’s speech addresses a matter of public concern should be determined by the content, form, and context of a given statement, as revealed by the whole record.” Complaining about work is unlikely to pass the public concern test, unless the speech presents broader issues of public importance, such as “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Relevant criteria of the public concern test may include whether the speech is directed to a public or private audience and whether it calls for a concrete change in the employee’s working conditions (speech that is merely of personal interest to the employee) or invites a broader public debate concerning a government entity (speech that is of public interest).

Finally, if a government employee speaks as a private citizen on a matter of public concern, the last test balances public services and free speech. According to this test, the court must evaluate whether the employee’s interest in speaking freely and the value of the speech outweigh the interest of government in restricting it. To analyze the interest of the government as employer, the court must consider the following set of factors: whether the speech interfered with the employee’s responsibilities; the nature of the working relationship between the speaker and those at whom the criticism was directed; whether the relationship between the speaker and the person criticized was sufficiently close that the speech created disharmonious relations in the workplace; whether the speech undermined an immediate superior’s discipline over the employee; and whether the speech compromised the loyalty and confidence required of employees. After considering each factor, the court must weigh them against the employee’s interest in speaking freely. Therefore, under U.S. law, the freedom of expression of public servants acting in the course of their job is sweepingly denied, except for statements on matters of public concern made in their capacity as private citizens.

This is what the Supreme Court ruled in the Garcetti case, in 2006, and the ruling stands to this day, despite extensive criticism in the literature. In the present critique of American law, I offer a different point of view, inspired by Israeli law. I argue that public employees have a hybrid status by virtue of which they enjoy freedom of expression even in their capacity as public employees. Although the right to freedom of expression is not absolute under Israeli law, and it may be withdrawn if the expression is liable to result in imminent harm to public service, a chasm separates the American and Israeli approaches. I argue that even people operating in the public sphere are entitled to the protection of freedom of expression, whether they speak as public figures or as private citizens, and whether they address an issue of public controversy or a private matter.

I do not disagree with the basic assumption that public employees are public servants and that they do not act for themselves but for the public. Yet, the status of an administrative authority is not the same as that of a person appointed to serve as its organ. Unlike the authorities, public servants are both “their own” and “the public’s.” A sweeping denial of the freedom of expression of public servants in the exercise of their jobs severely impairs the autonomy of their private will and their ability, as individuals, to say what is on their mind. It also severely damages the public interest because the immediate consequence of this approach is silencing. Consequently, public servants will be likely to refrain from criticizing the public authority and pointing out failures in its conduct. Therefore, granting freedom of expression to public employees is essential both for the protection of their private aspects and of the public interest.

This is not to say that the freedom of expression of an ambiguous entity can always be protected against competing public interests. At the very least, however, such an entity deserves a fair chance against conflicting public interests. As trustees of the public, public servants are required to act for the benefit of the public and not for their private interest. But as long as the realization of their private desires does not undermine public trust, moral purity, or the proper functioning of the public administration, I propose demarcating a private space in which their freedom of expression is protected within the public expanse in which they operate. I propose a middle ground that bridges the gap between their loyalty to the public and the realization of their autonomous private will in a way that does not infringe on their duty to act both fairly and honestly. More broadly, I argue that every person operating in the public sphere has a public/private hybrid persona (hereinafter, a hybrid persona).

This article proceeds as follows: Part I is devoted to the presentation of the characteristics of the hybrid persona. In this part, I propose to adopt a theoretical approach, according to which individuals operating in the public sphere are “hybrid personas” who enjoy a certain space of privacy in their activities in the public sphere. In this space, hybrid personas occupy both a private and a public space. hybrid personas are not expected to completely shed their private aspects when serving as public figures or to completely divest themselves of their public aspects when acting within their private sphere. Part II describes how the law in Israel balances the private and public aspects of hybrid personas. Part III focuses on the advantages of the Israeli approach over the American one. In this part, I critique the rigid binary approach of the Supreme Court, which differentiates sharply between speech in the course of employment and private speech. As an alternative, I propose the flexible Israeli approach, which protects all types of statements, on private and public issues, whether the speaker wears a private or a public hat, as long as the statement does not harm public trust, moral rectitude, or the proper functioning of public administration. The last part briefly concludes.

I. The Hybrid Persona: A Dual Legal Entity

A human being, created in the image of God, is the ultimate individual person. Persons do not have to form an association for recognition of their right to act in accordance with their conscience. But when serving as an organ of an artificial legal entity, created by law, and enjoying the prerogative to exercise governmental powers, the individual should be classified as a hybrid persona.

This persona embodies a dual legal entity, as an individual who is a private legal entity that is not a product of the law, and as a public figure, who is a separate legal entity stemming from its public status. For the most part, it is easy to distinguish between these two legal entities and apply legal norms of different kinds to them, respectively. In the public sphere, hybrid personas serve as the long arm of the authorities and, as such, they have no rights, powers, or immunities unless explicitly granted by law. In the private sphere, hybrid personas are entitled to act in accordance with the dictates of their conscience and are authorized to do anything unless prohibited or restricted by law.

Yet, at times the private aspects of individuals in a public office cannot be easily separated from their public aspects. In the process, a symbiosis emerges between the two legal entities, producing a hybrid persona that must balance its private and public aspects. This is not a pathological condition but part of reality. It is not possible to surround hybrid personas with virtual walls that would completely separate their various actions.

In an age when the walls between private and public have been breached, a certain space of privacy must also be allowed in the activities of public employees in the public sphere, and their freedom of expression must be protected, whether they express themselves as public figures or as private citizens. In this space, employees must be allowed to be both “their own” and “the public’s” and should not be expected to entirely shed their private aspects. Conversely, when occasionally public servants act in the private sphere, they cannot completely cast off their public aspects, and their public status follows them also in their private sphere.

The role of the law is to look at reality and produce arrangements that balance the private and public aspects of a hybrid persona. American law, which categorically denies the protection of the freedom of expression of officeholders in their capacity as public figures and/or when they speak on private issues, disrupts the delicate balance between the private and public aspects of hybrid personas.

The law recognizes every human being as a natural legal entity that is not a product of law. The private aspects of human beings are not the result of the autonomous private will of a corporation, but of the human beings themselves. These aspects were born with the human being, not created by law. The most salient feature that distinguishes humans from a corporation is their humanity, which allows them to feel anger, frustration, outrage, compassion, pity, and disgust. In the words of Aharon Barak, former Chief Justice of Israel, the right to personality

expresses human dignity—that is, his free will, autonomy, power to weave the story of his life and humanity—in the special aspect of protecting his personality. This aspect is reflected in the self-definition, self-expression, and personal integrity of the person.

The erosion of the private aspects of a hybrid persona may lead to an infringement on the autonomy of a person appointed to serve as an organ of a public authority.

To minimize this harm, or at least ensure its proportionality, we must respect the constitutional rights of hybrid personas and consider their feelings even when they operate in the public space. Therefore, as policymakers, we must highlight the place of the human being in the activity of hybrid personas and secure for them a private space within the public province in which they operate. Like the justice system, public authorities need a soul, and those who breathe life into the system are none other than the human beings who hold public office. Alongside their duty to act fairly and honestly, it is necessary to exalt their personality, culture, values, inclinations, beliefs, and customs. In this way, hybrid personas can fuse their inner self with their public activity. This approach is consistent with Kant’s moral doctrine whereby humans should be seen as a goal, not merely as a means.

Nevertheless, American law denies persons operating in the public sphere, whatever their function in the public system, the constitutional right to freedom of expression when expressing themselves in their capacity as public figures, when expressing themselves on private matters, or both. In doing so, American law seeks to create uniformity between public and private employees, both of whom have the protection afforded by general civil law to expression in the workplace, but not the constitutional protection. On the face of it, this distinction makes sense. Why should public-sector employees receive greater protection than those in the private sector? According to this argument, the civil protection to which both are entitled should not be confused with constitutional protection in accordance with the First Amendment. Any other result would improve the status of the public employee over that of the private one, simply because the former works for a public employer. Below I show that reality is more complex. Working in a public place can lead to restrictions on public employees that do not apply to private employees, such as dismissal due to statements that are not consistent with the status of a public employee. For example, public employers, as opposed to private ones, can prevent employees from engaging or participating in politics. Because there is greater fear of infringing upon the freedom of expression of a public than of a private employee, there is no symmetry between the two. Quite the opposite: a special law must be enacted to distinguish public employees from private ones.

Erosion of the private aspects of the public servants may harm the public interest. First, it may cause a chilling effect that prevents a hybrid persona, who knows the public system better than anyone else, from exposing its injustices, failures, and shortcomings. The protection provided by law to whistleblowers in some states does not necessarily help if public employees criticize their supervisors, for example, in a private conversation, or if they make statements about facts that are publicly known already. As dissenting Justice Stevens made clear in the Garcceti case:

Speech addressing official wrongdoing may well fall outside protected whistle-blowing, defined in the classic sense of exposing an official’s fault to a third party or to the public . . . . In any event, the combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not a showing that worries may be remitted to legislatures for relief.

This incomplete protection is liable to harm the public service and impair the ability of the public employee to advance the public interest through constructive criticism based on professional knowledge and experience gained. As a result, we lose one of the most important means of criticism of the public authority in a democratic society: the ability to bring about change through exposure of injustices, failures, and shortcomings by public servants who know better than anyone else the failures of the public system. It might also lead to the exclusion from the public service of talented people, who may prefer to maintain their privacy and shun public positions, undermining the ability to recruit the best professionals for public positions.

I do not intend to set clear boundaries that distinguish between one aspect of a hybrid persona and another. Doing so would reduce the most notable advantages of the Israeli approach, which is flexibility. According to Israeli law, the scope of the private aspects of a hybrid persona is examined in each case on its own merits, in view of the concrete public role the officeholder fulfills. The more an officeholder’s public aspects are the result of fulfilling an important and sensitive public role and the more senior the officeholder’s public status is, the more its private space is reduced, although it never completely disappears. Conversely, the softer the public aspects of the hybrid persona are, the greater expression is allowed to its private aspect. This flexibility grants the court the tools to achieve a just result that balances the private and public aspects of a hybrid persona.

II. The Law in Israel: Balancing the Private and Public Aspects of Hybrid Personas

Israeli law grants hybrid officeholders a constitutional right to freedom of expression in their public practice as well. This right is not unlimited, however. Section 1 of the Civil Service Law (Classification of Party Activities and Fundraising), 1959, authorizes the government to determine the types of civil servants who are not allowed to be members of a party; to participate in a demonstration or procession of a political nature; to participate in election propaganda; or to publish criticisms of the policies of their or other government ministries. These restrictions are intended to protect the clean image of the civil servant as impartial and to conceal their political preferences. Violation of these provisions is a disciplinary offense.

The provisions of the Civil Service Law allow disciplinary action to be taken against employees who act in a manner that is inappropriate for their position as a civil servant or in a manner that has harmed the image of the State. Is a private statement of a public servant that contradicts the official policy of the government authority that employs the officeholder considered as inappropriate conduct? In principle, it is not appropriate for a public servant to expound publicly against the policy pursued by a competent public authority operating by virtue of the mandate given to it by the electorate and entrusted with the policy implementation. At the same time, we cannot overstate the importance of protecting the free expression of an officeholder for eradicating corruption and irregularities in the workplace.

Freedom of expression, which is at the highest level of human rights, is intended to ensure, as part of individuals’ personal autonomy, their right to freely express their opinions and feelings. There are four main reasons why freedom of expression is important both at the personal and public levels: self-realization, the discovery of truth, preservation of the democratic process, and balancing stability and change.

As part of their freedom of expression, hybrid personas, like other persons, are entitled to say in public, without fear, things that may upset, insult, and offend. In the words of the Supreme Court of Israel, “Those who need special constitutional protection are . . . those who say ‘unusual,’ ‘dangerous’ things, outrageous, insulting, jarring and ­angering . . . .”

Similar to other human rights, however, freedom of expression is not an absolute right. The scope of protection is derived from the nature and weight of the value it is confronting. This raises the question of the limits of the freedom of expression of a hybrid persona.

Israeli law distinguishes between expression within the professional arena and expression outside of it. In general, a statement that is outside the professional realm in which the speaker operates, which may harm an important public interest, is received with less sympathy. The Israeli law is aware of the danger of conducting public debates in the workplace, disrupting the proper functioning of public managers, and damaging the fabric of labor relations. Furthermore, expressing public opinions about political issues on the public agenda may identify employees with their political views in a way that undermines public trust in the employees’ impartiality. Naturally, this does not prevent the public servants from expressing their views to family or personal friends, but as long as they are in office, their freedom of expression must be restricted. For example, public confidence may be undermined if judges, who decide people’s fates, are involved in public discourse and express positions on issues subject to public controversy. A judge who comments publicly on political issues harms public trust in the judiciary, even if acting in an individual capacity; therefore, Israeli law prohibits such expression. It follows that the second condition of the American triple test, according to which a threshold condition for constitutional protection of freedom of expression is an expression concerning an issue on the public agenda, is not appropriate in all cases. At times, especially when we are dealing with judges, it is appropriate to deny constitutional protection for an officeholder’s statement on an issue on the public agenda, even if the statement is made in the capacity of a private citizen. This result is in contrast to expression on private issues that do not provoke public controversy, which in general raises less concern about harming public trust in the public system. Moreover, public employees are the representatives of the public authority, and their remarks must not include statements that offend some group or other. Unlike elected officials, who are identified with certain sections of the public, employees are required to provide service to the public as a whole, in all its shades and streams, without discrimination or bias. These obligations are derived from being loyal to the entire public. It becomes even more critical when their statements are closely related to the service they render to individuals because their clients become de facto a captive audience of the public employees, depriving the citizens of the basic right to ignore the employees’ statements. Naturally, public servants who desire to elude these limitations, can resign their commissions and express themselves freely, like any other individual.

In contrast to American law, Israeli law attaches great importance precisely to the expression of a hybrid persona within the professional field in which it operates. The reason for this is clear: a public servant, more than anyone else, can point out failures in the public system and expose injustices in the public service. A sweeping check on these statements may harm the public interest, in addition to violating the autonomy of the public employee. Therefore, despite the inconvenience involved in public servants publicly objecting to the policy adopted by the authority to which they belong, the Israeli Supreme Court has ruled that a statement can be prohibited only if there is a near-certain harm to the public service. For example, when a public service psychologist expressed satisfaction at the killing of Israel Defense Forces soldiers during Operation Zuk Eitan, the Labor Court refused to order her return to work following her dismissal. The Supreme Court adopted a similar approach when it qualified the dismissal of a school principal who took part in a demonstration during which he called for disloyalty to the state and government.

An example of a legitimate expression in the professional field in which a hybrid persona operates is the harsh criticism voiced by public attorneys in Israeli in 2017 (and later referred to as the “attorneys’ protest”). The wave of protests arose following a legal position presented to the Supreme Court by the State Attorney’s Office. The state, which represented the Ministry of Labor, Welfare and Social Services, argued for rejecting a petition demanding that the state be required to allow same-sex families to adopt children. The main reason for rejecting the petition was that it needed to amend legislation, so that same-sex couples could adopt, given the unambiguous the language of the law: “There is no adoption except by a man and his wife together.” The attorneys’ anger was aroused with reference to the position of the professionals in the Child Welfare Services, according to whom a child adopted by same-sex parents would face an “additional burden.” For these reasons, without blaming same-sex parenting, it has been argued that professionals in the Child Welfare Services are not currently recommending a change in legislation. These remarks provoked a rare wave of protest from attorneys working for the state. As part of the wave of protests, many attorneys sent emails to all their colleagues and expressed their displeasure with what was stated in the position of the Child Welfare Services professionals.

For example, one of the attorneys sent an email to all his colleagues entitled “I am also exceptional and different,” which stated, among others:

Sometimes a protest must also come from inside. As someone who has loved his workplace for 13 years, and is daily proud to represent the state’s position in the courts, this week I was ashamed of my country, and no less of my workplace. Because my workplace has decided to turn its back on me . . . . It is possible to argue legally about the language of the adoption law, about the proper way to change it, all of which are legitimate arguments, but this is a case of a clear and unequivocal expression of a value position. The State Attorney’s Office that I discovered is a State Attorney’s Office that is not willing to represent or sign any position. I’m also an exception. Embarrassing. Shameful. Black flag.

In the end, apart from criticizing the bluntness of the speech, the Attorney General and the State Attorney did not reprimand the attorneys for the criticism itself. On the contrary, they explicitly stated that attorneys were allowed to disagree with the position of the state based on its merits. Professional criticism can enrich the public debate and may lead to public discussion about its content, which is a good thing. But not to undermine public trust in the State Attorney’s Office, the criticism should be respectful. Criticism of the position of the state in court, even if it is sharp, deserves to be heard, as long as the attorneys indicate that they are expressing their personal opinion. Although Israeli law ascribes great weight to expression within the professional field in which the hybrid persona operates, such expression does not always receive full protection. For example, it is clear that an attorney appearing in a case, who is supposed to argue in court in favor of the position of the state, is not allowed, as an individual, to argue against that position. Such expression of opinion can severely damage public trust in the State Attorney’s Office and may harm the chances of the state to prevail. Similarly, judges cannot make statements in the media even if they seek to respond substantively to harsh criticism leveled against their judgments. This is because public trust in judges would be undermined if judges abandoned their lofty position and responded over the pages of newspapers to criticism leveled at them. Therefore, it is more appropriate for them to have their say in their verdicts, not in the media. Nevertheless, to minimize the infringement of the judge’s freedom of expression, Israeli law finds creative solutions, which, on one hand, do not completely prevent expression, but, on the other, create a mechanism that ensures that such expression does not harm public trust. Therefore, when judges wish to respond to criticism, they do so through the court spokespersons. A direct statement to the media by a judge requires prior approval from the President of the Supreme Court. This mechanism infringes on the freedom of expression of the judges, but, given their unique status, the infringement appears to be proportionate.

Note that expanding the freedom of expression of a hybrid persona entails the extension of the freedom of expression of a group seeking to voice its opinion against such expansion. In the modern age, many hybrid personas, and in particular elected officials, tend to use social networks to convey messages, share information with the public about their public roles, and “talk” to them about their actions in the course of their job. The uniqueness of social networks, in contrast to traditional media, lies in the two-way discourse that they allow. But although private users can block others with whom they do not want to communicate, the reality is more complex for a hybrid persona who enjoys freedom of expression and uses the social platform for public needs. It is inconceivable that hybrid personas would enjoy freedom of expression in their public role, and in the same breath that they would block the expression of a public seeking to speak out against them and criticize their actions, even if the expression may harm the hybrid persona’s good name. For that reason, Israeli law generally prohibits hybrid personas from arbitrarily blocking a user whose entire “sin” stems from legitimate criticism, however harsh, expressed against the officeholder. A report issued by the Ombudsman in 2016 in Israel made specific reference to restricting public figures from blocking users on their social network accounts. From the file, it appears that as part of balancing the freedom of expression of the public with the protection of the hybrid personas’ reputation, additional weight must be ascribed to a free exchange of opinions criticizing the officeholder’s work.

Unlike Israeli law, American law is much less flexible when it comes to defining a hybrid persona’s social network account as a “public account” that is subject to constitutional restrictions. ­Nevertheless, even American law recognizes the need to limit the power of social networks to block users arbitrarily, including when it comes to hybrid personas who use their account to speak in their official capacity. The U.S. Supreme Court stated:

Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms. . . . If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.

III. Advantages of the Israeli Approach over the American One

As far as legal certainty is concerned, both approaches require the application of complex tests, some of which are subjective and do not lead to one clear answer, such as the seniority of the public employee; whether the statement was made at the workplace or outside; whether the statement created the impression that it expresses the position of the officeholder to whom the hybrid persona belongs; whether the statement was within the specialized professional field of the hybrid persona; whether the topic was one of public controversy; and whether the statement was likely to severely damage the image of the public service.

These parameters, most of which have also been adopted by Israeli law, are important for balancing the private and public aspects of hybrid personas. Ultimately, even according to the Israeli approach, the extent of the consideration shown for the private aspects of a hybrid persona is determined on a case-by-case basis, taking into account the balance between the content of the expression and the public role played by the officeholder. The more important the officeholders’ public aspect is, the more senior their public status, and the greater the fear of harming public trust as a result of the expression, the more the private space will be reduced, albeit never to zero. Conversely, the narrower the officeholders’ public aspects are and the lower the fear of harming public trust, the greater the scope that will be granted to the private space.

The complexity can be illustrated by the following example: Is a minister allowed, in a discussion in a Knesset committee to which he is invited, to express a position that disagrees with that of the government? According to the position of the Attorney General in Israel, a minister is not allowed to disagree with the government position in Knesset debates. This position was approved by the Supreme Court of Israel. The scholarly literature in Israel, however, expressed a different opinion: although a statement intended to prevent the implementation of the government decision should be prohibited, a statement intended to present a critical position should be permitted. This distinction reflects the proper balance between the minister’s duty of trust toward the Knesset and the public, and the prohibition imposed on a member of a collegiate body to thwart the decisions of that body, of which he is a part.

I agree with this approach. While it is important to speak with one voice, the public interest in hearing an expression of a hybrid persona on issues related to the core of its public role should not be underestimated. Public criticism of the organization’s policy, to which the hybrid persona belongs, can shed light on considerations that the public is unaware of and enrich the democratic public discourse. Utterances of a hybrid persona, within the professional field in which it operates, will ensure a better understanding of the public controversy and improve the critique of the activities of the public body to which it belongs. However, as stated, the freedom of expression of a hybrid persona is not absolute. A critique that might undermine its core role should not be allowed. In addition, no attempt should be made to prevent the implementation of a lawfully made decision. A minister, who wishes to act in this way, may do so only after he has resigned from the government. This example illustrates the need to apply a variety of tests in order to achieve the correct result, even at the cost of uncertainty in the balance result. In this respect, there is no difference between the Israeli and the American approaches. Both rely on complex parameters and are liable to lead to inconsistency in case law and uncertainty regarding the prevailing legal situation.

Yet, the salient disadvantage of American law lies in the binary and artificial result of the application of the first two tests adopted by the majority in the Garcetti case. This result, to which Justice Souter referred as “winner-take-all” in the dissenting opinion, impairs the ability to balance all the conflicting values. As Justice Souter noted, “When constitutionally significant interests clash, resist the demand for winner-take-all; try to make adjustments that serve all of the values at stake.”

This is where the superiority of the Israeli approach over the American one is manifest. The Israeli approach leads to a variable, flexible, and precise result, designed to find the proper balance in each case between the private aspects of hybrid personas and their public role. By contrast, the American approach categorically denies the protection of freedom of expression to a hybrid persona when speaking as a public figure and/or on private issues. For example, if it is decided that a minister’s statement during a discussion in the Knesset committee to which he was invited was made as part of his official duties, it would be automatically banned, even if there was clearly in the interest of the public to hear it. This reflects the main limitation of the American approach, which upsets the delicate balance between the private and public aspects of a hybrid persona and may lead to unrealistic results.

To begin, the first test, which sweepingly denies constitutional protection of any expression in a public capacity, does not distinguish between expressions made as part of internal discussions within the public authority, such as internal memoranda to an employer about system failures, and those that expose the information to the general public through direct contact with the media, such as a press conference at the workplace. The importance of protecting freedom of expression is greater in the first case than in the second because it makes possible an open dialogue within the authority, aimed at resolving disputes and maximizing the public interest. (Note, however, that at times it is important to speak through the media, especially when the officeholder had doubts about obtaining a proper hearing within the authority.) Professor Orly Lobel described these situations with reference to lawyers’ obligations to report, internally, inappropriate behavior they encounter while handling a case:

Internal channels of reporting misconduct to supervisors or boards strike the best balance between new governance approaches to regulation and client-attorney privileges. Consequently, the law should support such reporting structures and discourage other forms of more disruptive disloyalty. Within organizational practices that rely on self-regulation, lawyers must take a broader perspective than merely their client’s immediate requests. At the same time, emphasizing internal communication within the corporation or government agency allows the organization to localize the investigation and to build an environment of trust and ethical conduct.

Despite the important distinction between utterances made through internal channels and those made to the media, neither type enjoys constitutional protection when they are made in the public capacity of the officeholder.

Second, according to the first test, although officeholders’ expression in their public capacity at the workplace and during working hours does not enjoy constitutional protection, the same expression may be protected if published in the media, outside the workplace and not during working hours, as long as it passes the second and third tests. This artificial result may create two distortions: (a) public servants may prefer to speak outside rather than within the authority, in the hope that the court would deem their expression to have been made in a private capacity and therefore entitled to protection (at the same time forfeiting the benefits inherent in a free and open internal discussions within the authority); (b) the attempt to separate the public and private capacities of hybrid personas is doomed to failure. According to Mary-Rose Papandrea, “[p]ublic employees do not cease to be citizens even when they are performing their jobs, and they do not cease to be employees when they are away from work.”

Because of the dual status of hybrid personas, it is not possible to create a barrier between their public and private roles. Although at times statements made by public servants at home may pass the first test (if they are deemed to have expressed themselves in their capacity as private citizens and not as public servants), the formal aspects do not necessarily sever the Gordian knot between the statement and the officeholder’s public role. Therefore, what is the benefit of the first test, given that the question of the constitutional protection of expression is in any case examined by means of the third test (for, as noted, even if they expressed themselves at home in their capacity as private citizen their words may harm public trust)? Clearly, the first test is not only unnecessary, but its harm outweighs its benefit. We reached a similar conclusion with respect to the second test. Third, under the second test, the expression of public servants in their private citizens’ capacity on private matters does not enjoy constitutional protection despite the lowered fear of harming public trust. At the same time, the expression of the same public servants on an issue of public importance may enjoy constitutional protection, as long as it is made in the capacity of a private citizen and passes the third test, despite the heightened fear of harming public trust. The second test may, therefore, lead to a false result: a private expression, which on the face of it deserves the protection of freedom of expression, would not even pass this test and therefore would not be subjected to the third test, whereas a public expression, which on the face of it raises greater difficulties than the private expression, may easily pass the hurdle of the second test and be examined by the third test.

Fourth, the first and second tests treat all public employees as one and do not distinguish between various types. This rigid approach may create further distortions. For example, although it is relatively easy to justify the rationale of the first and second tests regarding the expression of a senior public servant speaking in an official capacity, it is more difficult to justify it in relation to the expression of a junior public servant. Should the utterance of a teacher in a public school, expressed on social media on a disputed public issue, be treated the same way as the statement of the Attorney General on social media on the same issue? The distinction should be made in the third test (benefit-damage), not through a rigid, binary, and artificial distinction in the first and second tests.

These artificial distinctions, which are intended to prevent judicial intervention in labor relations between the state as an employer and its employees, can lead to serious harm to both the hybrid persona and the public interest. At the individual level, a sweeping erosion of the private aspects of a hybrid persona, especially when speaking on issues that are not on the public agenda, may infringe on the autonomy of a person appointed as an organ of public authority, and deny such a person the right to express anger, frustration, outrage, compassion, pity, or disgust.

The lack of protection for utterances of a hybrid persona in an individual capacity may harm many public interests. For example, this approach may harm the public interest of open discourse in the performance of public office, exposing corruption and correcting the ways of public service, despite the fact that hybrid personas know the public system better than anyone else and have the ability to expose injustices and failures of the public system. A sweeping denial of freedom of expression of hybrid personas in their public capacity, consolidates mediocrity and has a chilling effect on bringing vital information to the public.

The importance of defending these statements from a utilitarian point of view was addressed by dissenting Justice Souter, in the Garcetti case:

The judgment has to account for the undoubted value of speech to those, and by those, whose specific public job responsibilities bring them face to face with wrongdoing and incompetence in government, who refuse to avert their eyes and shut their mouths. And it has to account for the need actually do disrupt government if its officials are corrupt or dangerously incompetent.

This clearly highlights the advantage of the Israeli approach, which grants priority to the freedom of expression of hybrid personas precisely in the professional field in which they operate and examines each case individually to determine the benefit to freedom of expression or public trust of such prioritizing. For example, in a recent case, the Israel Supreme Court ruled as follows:

Not a statement whose degree of harm to other people is relatively small, but a harsh and offensive statement; not a one-time unintended utterance, but as a series of forbidden statements that are interpreted over a long timeline; and not a statement made by a relatively junior public servant, which has no real effect on the image of the public service and its employees, but an abusive statement or other forbidden statement uttered by a senior public figure, who holds power, and who colors the entire service as biased or prejudiced . . . .

This case dealt with statements by a city rabbi, a public servant who provides religious services to the public and exercises halakhic powers that include commentary on people’s way of life according to the Jewish religion. Justice Stein argued that although statements that include “curses, insults, ridicule, or hatred towards certain people or groups of people” should be rejected, they can be acceptable if they are intended to convey a “halakhic message” to a large audience. In his view, statements expressing contempt toward the phenomenon of assimilation of Jews and the LGBT community; propose a halakhic ban on the sale and rental of Jewish property to Arabs; or condemn the service of women in the Israel Defense Forces, are acceptable as long as they are intended to convey a “halakhic message” and as long as they are uttered “from the rabbi’s religious-national perspective.” This approach stems from the weight that must be attached to the protection of freedom of expression of a hybrid personas concerning issues that are within the professional field in which they operate. In Justice Stein’s view, a city rabbi’s freedom of expression should not be curtailed beyond what is required to fulfill his duties, lest it produce a chilling effect on religious-halakhic activity within the purview of the city rabbi.

This fundamental approach, which strengthens expression within the professional field, contradicts the first of the triple test used in American law, which categorically denies protection of a public employee’s freedom of expression when speaking as part of their “official” duties. Indeed, not every statement of a public servant, in a private or public capacity, deserves protection. At times, damage to the public interest and to the public’s trust in the public system as a result of the statement can be decisive. To this end, there is the third test in the American triple test. I propose to forgo the first two binary tests in the American triple test, and similarly in Israeli law, by default granting public employees freedom of expression in any capacity they choose. In this way, all weight is transferred to the third test, which balances between the public employee’s freedom of expression and the fear of harming public trust as a result of the statement.

As part of this test, it is appropriate to review all the considerations addressed in the first and second tests, including the seniority of the public employee, the content of the statement, and so on. These are not to be given binary status, however, but must be balanced within the overall set of considerations to reach the appropriate result in any given case and the most precise balance between the private and public aspects of a hybrid persona. In the words of the dissenting Justice Souter in the Garcetti case:

I agree with the majority that a government employer has substantial interests in effectuating its chosen policy and objectives and in demanding competence, honesty, and judgment from employees who speak for it doing their work. But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do, public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.

In my opinion, applying this flexible test was intended to lead to denying the protection of the freedom of expression of a city rabbi who positively calls on the public not to lease Jewish property to Arabs or to the LGBT community, even if it was made within the rabbi’s professional purview and even if it was intended to convey a halakhic message. I do not propose to trample on the private aspects of a city rabbi, because we are dealing with a hybrid persona. Therefore, within the framework of freedom of expression, he should be allowed to interpret the halakhic sources in accordance with his religious understanding. At the same time, in his role as a city rabbi, who receives his salary from the public, he must represent the general public and act in accordance with the basic criteria of public administration, first and foremost, with his duty toward equality. Therefore, I propose to distinguish between a theoretical halakhic interpretation of sources, which may imply a discriminatory or degrading message toward different groups (such as the LGBT community, women, or Arabs), and a positive call for discrimination or contempt against these groups. Although the theoretical message may be shielded by the defense of the rabbi’s freedom of expression, this is not the case with regard to the call for operative acts, which, in my opinion, are beyond the pale.

This approach, which denies the legitimacy of racist expressions, is consistent with the American approach. For example, section 3604 of the Fair Housing Act prohibits a refusal to sell or rent dwellings on the grounds of race, color, religion, gender, family status, national origin, and disability. The only way to avoid determining that the law has been violated is if it turns out that the matter falls within the scope of one of the exceptions set out in the law. One of the exceptions, which appears in section 3607(a), allows religious organizations to sell or rent dwellings they own only to persons of the same religion. But a religious organization that seeks to exclude others on the grounds of race, color, or national origin, cannot benefit from this exemption. Although exclusion from housing based on religious affiliation enjoys considerable protection, exclusion based on race is perceived as illegitimate. In these cases, attempts to hide behind religious motivation will not succeed. Based on the same rationale, despite all consideration of the freedom of expression of public employees in the area of their professional work, it is not possible to countenance speech that includes a positive call for racist action against a group in the population. A positive call by a rabbi who receives his salary from the public for discriminatory preference of one group over another is far more than a violation of “good taste,” in the words of Justice Stein. I prefer, in this case, the position of Justice Amit, in the same case:

Things that may provoke controversy and animosity between different currents and audiences in Israeli society, among its tribes and shades, are not a necessary part of the respondent’s role as a city rabbi, and should not be seen as a “halakhic message” directed at his audience. . . . As a public servant, the respondent is an emissary of the state, and like any emissary owes the state and the entire public a duty of loyalty.

Without relation to the criticism of Justice Stein’s remarks, the approach of Israeli law, which provides hybrid personas with the right to express themselves in any capacity and on any subject they choose, but limits its protection based on an overall examination of the circumstances, is greatly preferable to the American legal approach, which sweepingly denies the freedom of expression to public servants who express themselves in their public capacity, and/or on private matters.

Admittedly, the proposed approach, which advocates granting constitutional protection to all types of public servants’ utterances, also has disadvantages. The main concern is flooding the courts with lawsuits aiming to drag the judiciary into intervening in the prerogative given to the State to exercise independent discretion in managing its working relationship with its employees. There is also concern that granting First Amendment protection to every statement of a public servant can lead to uncertainty and inconsistency in the application of the law because, after canceling the first two tests, all claims would be decided according to the third one, which is amorphous and difficult to apply in the absence of objective parameters.

Although these concerns should not be underestimated, they are outweighed by the benefits of the proposed approach over the current situation. The application of the triple test in all cases leads the courts to lengthy litigation that exacts many resources from the judicial system in the implementation of the complex and artificial procedures carried out in the first two tests. In other words, the cancellation of the first two tests would not necessarily consume additional valuable judicial time, and it has the potential to bring the parties and judges closer to a substantive discussion of the issues. This is highly preferable to the existing situation, where judges and parties waste precious judicial time discussing purely technical matters in the hallway. Although this result may exacerbate the inconsistency and uncertainty in case law because of the subjective criteria of the third test, its advantages outweigh the disadvantages.

First, as mentioned before, this approach prevents the chilling effect of silencing public officeholders and encourages them to speak out. As they know better than anyone else the failures of the public system, it is for the public good that they express themselves within the professional field in which they operate to expose injustices, failures, and deficiencies.

Second, in addition to protecting the public interest by exposing injustices, this approach leads to the realization of the autonomy of public employees. The abolition of the second test, which confers constitutional protection only for issues on the public agenda, strengthens the rights of public employees as human beings and enables them to bring their private world to their workplace, where they spend most of the day. In doing so, we convey an important message that will encourage talented people to seek positions in the public service.

Third, this approach obviates the need to make artificial distinctions between officeholders expressing themselves in their public and private capacities and between speaking out on issues on the public agenda and on private matters. Eliminating these distinctions will also do away with the need to use artificial criteria that lead to inconsistent results, will increase public confidence in the legal system, and will send a clear message to potential public employees that they will retain their constitutional right to freedom of expression in both public and private capacities, regarding both public and private affairs. As noted, this does not mean that their freedom of expression in their public capacity will be fully protected, but only that at the very least, it will be given a fair chance.

Conclusion

A human being, created in the image of God, is the ultimate individual. Human beings need not initiate a process of incorporation in recognition of their constitutional rights. My main argument in this article was to show that at a time when the walls between private and public have been breached, it is appropriate to provide hybrid personas a constitutional right to freedom of expression whatever hat they may be wearing, and on whatever subject they may be discussing.

To this end, I propose that American law adopt the Israeli starting point, according to which every person operating in the public sphere is a hybrid persona that enjoys a certain space of privacy in all activities in the public sphere. In the same space, public personas are both “their own” and “the public’s” and should not be expected to entirely shed their private aspects in the exercise of their function as a public figure. Conversely, they should not be expected to completely disembarrass themselves of their public aspects in their private sphere.

I suggest abandoning the rigid binary approach of the U.S. Supreme Court that differentiates sharply between speech in the course of employment and private speech. As an alternative, I propose the flexible Israeli approach, which protects all types of statements, on private and public issues, whether the speaker wears a private or a public hat, as long as the statement does not harm public trust, moral rectitude, and the proper functioning of the public administration.

This approach would allow the court, like a constitutional tailor, to fit a hybrid persona with the suit that best balances the private and public aspects. Under this arrangement, the court will be furnished with tools that it needs to examine whether or not to protect the expression of public employees, based on the nature of the statement, on the one hand, and of the fear of harming public trust and the proper functioning of the public administration, on the other.

All this will be accomplished without abandoning the parameters formulated over decades of U.S. case law for the application of the triple test; without abandoning the principle that places human beings at the center; and without renouncing the flexibility needed to find the optimal balance between protecting constitutional rights and competing public interests.