Frost & Frost/Justice Sutherland approach: This approach superseded the “right-privilege” approach. Under the Frost & Frost approach—contrary of the right-privilege approach—the common law of contracts is essentially irrelevant and cannot be invoked. Rather, the First Am. disallows government from imposing restrictions on free speech, as much so by contract as by any other advice. The government can place no restrictions on an employee’s speech. The rationale here is what government cannot do to anyone directly (because barred by the First Am.), neither can it do directly by offering a “trade” (restrictions on employee’s First Am. rights in
exchange for his employment with the government).
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