Public Employee Free Speech: The New Regime
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.
The Dramatic Shift: The Garcetti Three-Step
Garcetti involved a First Amendment challenge to allegedly retaliatory employer conduct directed at a deputy district attorney because he had informed superiors of his serious doubts about a police officer’s affidavit in support of a search warrant. Though the deputy district attorney recommended dismissing the relevant criminal charges, his supervisors nevertheless decided to proceed with the prosecution. The deputy district attorney sued for damages under section 1983 alleging a violation of his First Amendment rights through retaliatory conduct. According to the Supreme Court in this 5-4 decision, the employee lost because the First Amendment was simply inapplicable.
Why? “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In such cases, the employer’s interests in the exercise of management discretion, in the efficient functioning of the workplace and in avoiding the chilling effect of employee litigation trumped any asserted First Amendment interests.
Notice what Garcetti does to Pickering: even where a public employee’s speech is clearly a matter of public concern, like the speech in Garcetti, the First Amendment is inapplicable if that speech was engaged in pursuant to that employee’s duties. This creates a big hole in Pickering and the First Amendment.
I call this the Garcetti three-step because now the first question in a public employee free speech case is whether the speech was pursuant to that employee’s duties. Only if the answer is no does a court proceed to the Pickering two-step test. If the answer is yes, then the First Amendment issue drops out.
Some Problems with Garcetti
1. The Court had no real reason to limit the scope of First Amendment protection for public employees so severely. Although the interests of public employers are surely legitimate, there is little indication that the courts and public employers were overwhelmed by First Amendment litigation under Pickering.
2. Garcetti creates a major incentive for public employers to define their employees’ jobs as broadly as possible in order to limit First Amendment protection.
3. Garcetti also encourages public employees to go public with their whistleblowing rather than proceeding through channels, in order that their speech not be considered to be pursuant to their official duties.
4. Consider how often public employees find out about official misconduct and illegality. Indeed they are often in the best position to report such matters to their supervisors. However, after Garcetti such whistleblowing is not protected by the First Amendment from employer discipline because employees are typically required by their job duties to report official misconduct and illegality.
5. Note also the profound implications of Garcetti for academic freedom in higher education. After all, don’t a professor’s classroom speech and his or her scholarship constitute speech pursuant to the professor’s official duties?
Finally: of all the values protected by the First Amendment, perhaps the most important is self-government. Yet Garcetti undermines that value directly by discouraging the reporting of official misconduct and illegality. Add to that the fact that most federal courts are interpreting Garcetti quite broadly in favor of public employers and one begins to get a real sense of the adverse impact of Garcetti.