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Column: Endangered First Amendment Rights of Public Employess (New York Law Journal)

By Christopher Dunn

For decades the First Amendment has protected government employees from retaliation when they have spoken out about hidden wrongdoing within public agencies. Frank Serpico may be the best known whistleblower in New York history, but he is just one of hundreds if not thousands of public employees who have courageously stepped forward over the years to reveal serious government misconduct.

As the United States Supreme Court long ago recognized, because public employees often are in the best position to reveal such misconduct, protecting them from retaliation is essential for assuring government accountability.

Six years ago, however, the Supreme Court added a new hurdle for public employees asserting constitutional protections against retaliation. Since then, the lower courts have expanded on this ruling to the point that the First Amendment rights of public employees are now in serious jeopardy. A case decided last week by the Second Circuit — involving a police officer who, like Serpico, revealed serious misconduct within the NYPD — perfectly illustrates this threat.

Marvin Pickering’s Letter

Contemporary public-employee, free-speech law traces back to Marvin Pickering, a Will County, Ill. high school teacher. Between 1961 and 1964, his local school district had sought public approval for a series of proposals for increasing financial support for the district. Unhappy about how the district had handled its finances, Pickering wrote and had published in the local newspaper a letter to the editor criticizing the school board. As the Supreme Court described it, “The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.”

For this, Pickering was fired, a decision upheld by the Illinois Supreme Court. In a 1968 opinion written by Justice Thurgood Marshall, however, the Supreme Court reversed in Pickering v. Board of Education of Township High School District 205 and gave birth to what is known as the “Pickering doctrine.” Under that doctrine, the First Amendment has protected speech by public employees about their employer agencies so long as their speech is on a matter of “public concern.” Like all First Amendment protections, this one is not absolute (nor does it apply to disclosure of properly confidential or classified information), but it has afforded substantial protection to public employees.

At the heart of the Pickering doctrine is the recognition that public- employee speech about misconduct within the employee’s agency is particularly valuable for the public to receive and therefore must be protected. In Pickering, for example, the Court explained, “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out on such questions without fear of retaliatory dismissal.”

This core notion of the Pickering doctrine runs through the Supreme Court’s public-employee, free-speech caselaw, as the Court noted in its most recent Pickering case:

The Court’s employee-speech jurisprudence protects, of course, the constitutional rights of public employees. Yet the First Amendment interests at stake extend beyond the individual speaker. The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion. Pickering again provides an instructive example. The Court characterized its holding as rejecting the attempt of school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” It also noted that teachers are “the members of a community most likely to have informed and definite opinions” about school expenditures. The Court’s approach acknowledged the necessity for informed, vibrant dialogue in a democratic society. It suggested, in addition, that widespread costs may arise when dialogue is repressed.

For nearly forty years after 1968, the Pickering doctrine remained stable, and the Supreme Court decided only a handful of cases arising under the doctrine, usually upholding the free-speech rights of public employees. But that changed in 2006.

Richard Cebellos’ Memorandum

In Garcetti v. Ceballos, decided in 2006, the Supreme Court introduced a second significant consideration to the Pickering doctrine. The plaintiff in Garcetti was Richard Ceballos, an assistant district attorney who functioned as a calendar deputy. In that capacity one of his duties was to receive and investigate complaints about search warrants issued in cases pending in the district attorney’s office. In response to one such complaint Ceballos had investigated, he concluded the warrant had been improperly obtained and wrote a “disposition memorandum” to his supervisors outlining his concerns and recommending that the case be dismissed. As a result of this, Cabellos alleged, he was retaliated against. He then sued, alleging violations of his First Amendment rights under the Pickering doctrine.

In an opinion by Justice Kennedy, the Supreme Court rejected his claim. Without disturbing the First Amendment protections of a public employee to speak “as a citizen on a matter of public concern,” the Court held that a public employee does not speak as a “citizen” when simply discharging his or her normal job responsibilities. Rather, in those circumstances public employees are doing nothing more than their job.

Given this approach, the Court held that Ceballos’s speech did not implicate the First Amendment because the disposition memorandum was part of his normal job duties. As Justice Kennedy explained,

The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. 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.
. . . .
Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee.

In reaching this conclusion, the Court offered three important qualifications. First, it rejected the notion that Cabellos’ claim was foreclosed by the fact that he had spoken to his supervisors, citing an earlier case in which the Court had reversed the Fifth Circuit and held that speech to supervisors was entitled to First Amendment protection. In other words, notwithstanding Garcetti, a public employee may be speaking as a “citizen” even when speaking to a supervisor. The relevant question is whether the speech in question is simply part of the employee’s job duties.

Second, with respect to the issue of how to conceive of an employee’s job duties, the Court emphasized that employers could not, under the rule announced in Garcetti, deprive employees of their First Amendment rights simply by resorting to “excessively broad job descriptions.” Ceballos fell within the Garcetti rule because “the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties.”

Finally, with respect to the issue of how to separate citizen speech from employee speech, the Court explained that whether the speech qualified as citizen speech turned on whether there was a citizen “analogue” to the speech engaged in by the public employee. Where such an analogue exists, the employee’s speech is citizen speech that implicates the First Amendment; when such an analogue does not exist, the speech may be employee speech that does not implicate free speech guarantees:

Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper or discussing politics with a co-worker. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.

Garcetti Unleashed and NYPD Quotas

Notwithstanding the important qualifications the Supreme Court spelled out in Garcetti, government employers have been pushing hard for an expansive reading of Garcetti’s category of unprotected “employee” speech. The lower courts have struggled with the “citizen”-“employee” speech distinction, and in many instances have gone far beyond Garcetti’s limited notion of employee speech to reject free-speech claims.

The Second Circuit has decided a series of post-Garcetti cases, but most of its decisions have been in the form of summary orders, which by Circuit rule have no precedential value and, consistent with that, contain only cursory legal analysis. Given this and given peculiarities in the handful of full Pickering opinions the Second Circuit has issued since Garcetti, the law in this Circuit is quite unsettled when it comes to what public-employee speech qualifies as protected “citizen” speech as opposed to unprotected “employee” speech.

An NYPD-retaliation case that the Second Circuit’s Court decided last week aptly illustrates the threat to Pickering’s protections. The plaintiff there is New York City police officer Craig Matthews, a 15-year veteran working in the Bronx. While assigned to the 42nd Precinct, he warned commanding officers of the precinct that lower level precinct supervisors had devised a detailed system of quotas for arrests, summonses, and stop-and-frisks. Supervisors were using a color-coded tracking system to monitor officer activity, and officers throughout the precinct were pressured to meet the quota numbers. Those who did not were punished.

As with Marvin Pickering, Officer Matthews was retaliated against for his speech — disclosing the precinct’s quota system — and sued under the First Amendment (in a case in which I serve as counsel) last February. New York City moved to dismiss the case, claiming that his disclosure of the quota system was unprotected “employee” speech. In making this claim, the City did not rely on any job description, nor did it suggest that it was part of Officer Matthews’ specific job duties to report quotas to his precinct commanding officers.

Rather, the City argued that, because police officers’ general job is to “lawfully enforce the law,” any speech by a police officer about unlawful conduct within the police department is speech pursuant to the officer’s job and therefore is unprotected “employee” speech within the meaning of Garcetti. Southern District Judge Barbara Jones accepted this approach, and in April granted the City’s motion to dismiss the complaint.

On appeal, the City pressed this position before the Second Circuit. During argument last month, Judge Susan Carney asked the City’s lawyer if she could identify any situations in which, under the City’s approach, a police officer’s disclosure about misconduct inside the NYPD would be protected under the First Amendment. The lawyer could not identify one.

In a decision issued last week in Matthews v. Kelly, the Circuit reversed and reinstated the case. As with many prior post-Garcetti cases, however, it ruled only by summary order, thereby foregoing the opportunity to clarify the law about the scope of “employee” speech under Garcetti. And though it implicitly rejected the City’s sweeping claim about the post-Garcetti rights of police officers and other law-enforcement officials, its decision not to issue a full opinion addressing the claim leaves the issue generally unresolved.

Back to the Supreme Court

The Supreme Court’s decision in Garcetti v. Cabellos marked a troubling step back for the First Amendment rights of public employees. But the lower courts and government employers have gone far beyond Garcetti, as evidenced by New York City’s position in the NYPD-quota case. The very suggestion that Garcetti means that law-enforcement officers have no First Amendment right to reveal unlawful conduct within police departments is all the proof one needs that the Supreme Court needs to revisit the Pickering doctrine.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.

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