Nahmod Law

Introduction

Several years ago the United States Supreme Court handed down Garcetti v. Ceballos, 126 S. Ct. 1951 (2006),  the most important public employee free speech case in decades.

[Note: my article, Public Employee Speech, Categorical Balancing and Section 1983: A Critique of Garcetti v. Ceballos, 42 U. of Richmond L. Rev. 561 (2008), is downloadable. This article extensively criticizes Garcetti at the theoretical and doctrinal levels.]

The First Amendment Background: The Pickering Two-Step

In 1968, the Supreme Court decided Pickering v. Bd. of Educ., 391 U.S. 563 (1968), which held that certain speech of public employees was protected by the First Amendment from public employer discipline. Specifically: (1) if the content of the public employee’s speech was a matter of public concern, (2) then the First Amendment kicked in and protected the employee so long as the employer’s interests did not outweigh the free speech interests of the employee and the public. If, however, the employee’s speech was a matter of private concern only, then the First Amendment was inapplicable.

As a practical matter, in most cases where the employee’s speech was a matter of public concern, the employee won under the First Amendment. But this all changed in Garcetti. Read the rest of this entry »