COMMENTARY: Public-Employee Speech and the Garcetti Effect

By David L. Hudson Jr.

Sept. 28, 2009

Without a doubt one of the most impactful decisions in recent memory from the United States Supreme Court was its 2006 public-employee, free-speech decision in Garcetti v. Ceballos (2006). In this decision, the Court dramatically reduced the level of employee First Amendment claims by creating a categorical exclusion for official, job-duty employee speech.

Supreme Court

”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,” Justice Anthony Kennedy wrote for the majority.

In the case, assistant district attorney Richard Ceballos alleged his public employer retaliated against him in part for writing a memorandum criticizing the failure of his office to dismiss a case that featured false law enforcement testimony in a search warrant affidavit. To Richard Ceballos, he wrote on a matter of imminent public importance – the veracity of law enforcement. To Justice Kennedy, Ceballos’ retaliation claim failed because his ”disposition memo” was what he was ”supposed to do.” 

”Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employees might have enjoyed as a private citizen,” Kennedy explained. The majority distinguished between protected citizen speech and unprotected employee speech.

The decision caused a sea change in public-employee First Amendment jurisprudence, as many employees who speak out on important issues or blow the whistle on corruption no longer have a constitutional claim. For many years, courts applied a two-part test from Pickering v. Board of Education (1968) and Connick v. Myers (1983) – called the Pickering-Connick test – that first asked whether the employee spoke on a matter of public concern (public importance). If the employee’s speech did not touch on a matter of public importance, but was more of a personal grievance, the employee lost. If the employee’s speech did touch on a matter of public concern, then the court would balance the employee’s free-speech rights against the interests of a public employer in ensuring an efficient, disruptive-free workplace. 

Garcetti creates an additional threshold hurdle that most claimants will have a tough time clearing. As one plaintiff’s attorney told me, many of his clients have been ”Garcettized.”   After Garcetti, the importance of the information is not relevant. Many employees have spoken out on matters of public concern – even rank corruption in the workplace – but if the speech can be classified as official, job-duty speech they have no First Amendment protection.

Justice John Paul Stevens warns in his dissent in Garcetti that ”the notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.” He termed the majority’s decision ”misguided,” stating that it ”seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”

There is no doubt that Garcetti has had a monumental impact. The federal reporters are littered with cases granting summary judgment to employers based on the decision; however, unanswered questions remain. Some of these include the following: 

  • How do you determine an employee’s official job duties, and are those duties a question of law, fact or a mixture of both?
  • Does an employee escape the reach of Garcetti by going public and taking his complaints public?
  • Does it matter whether an employee speaks up the chain of command?
  • Does Garcetti apply with full force in the academic environment?

The lower courts do not agree on these questions, which creates the possibility that the U.S. Supreme Court might revisit the area of public employee speech and its holding in Garcetti.  Even more important than these questions, the Court might reconsider the wisdom of a rule that creates an incentive for public employees to remain quiet about important issues – even corruption – in the workplace.

Judge J. Harvie Wilkinson III addressed some of these issues in his concurring opinion in Andrews v. Clark (4th Cir. 2009) — a case in which a Baltimore police officer sent a memo he wrote to his superiors to The Baltimore Sun:

But as the state grows more layered and impacts lives more profoundly, it seems inimical to First Amendment principles to treat too summarily those who bring, often at some personal risk, its operations into public view.  It is vital to the health of our polity that the functioning of the ever more complex and powerful machinery of government not become democracy’s dark lagoon.

The Garcetti decision is having a negative impact on the functioning of our democratic government and should be re-examined.

David L. Hudson Jr. is a Middle Tennessee-based attorney who has authored or co-authored more than 20 books, including The Silencing of Student Voices: Preserving Free Speech in America’s Schools (First Amendment Center, 2003).

Sources

Garcetti v. Ceballos, 547 U.S. 410 (2006)

Andrews v. Clark, No. 07-1184, slip op. (4th Cir, 2009)