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Op-Ed: Public-Employee Speech In The Aftermath Of Garcetti (New York Law Journal)

By Christopher Dunn — Nine days after Chief Justice John Roberts recently announced his desire to move the Supreme Court towards consensus decision making, the Court splintered in its most significant decision in years addressing the First Amendment rights of public employees. In Garcetti v. Ceballos, decided on May 30, the Justices divided 5-4 (with three dissenting opinions) in narrowing the constitutional protections afforded public employees. Ironically, while handing government employers a legal victory, the decision likely will result in government agencies far more often reading about scandals in the newspaper rather than first hearing about them from their employees.

The Public-Employee, Free-Speech Landscape

Appreciating the significance Garcetti requires an understanding of the important public-employee speech cases that preceded it. And those cases start with the Supreme Court’s seminal 1968 ruling in Pickering v. Board of Education of Township High School District 205.

Pickering arose out of the firing of a public school teacher who had published in his local newspaper a letter to the editor criticizing school district actions on budgetary issues. The Court held that the First Amendment protected him from retaliation for the letter because it was on a matter of public concern and because there had been no showing of any material disruption in Mr. Pickering’s working relationships. This ruling gave birth to what is known as the “Pickering doctrine,” which generally stands for the proposition that public employees have a qualified First Amendment right to speak out as citizens on matters of public concern that can be overcome only upon a showing that workplace disruption outweighs the value of the speech.

Eleven years later the Supreme Court decided Givhan v. Western Line Consolidated School District, which presented a challenge to the firing of a junior high school English teacher who had complained to her principal about racially discriminatory practices in her school. The school district contended that the speech had lost its Pickering protection because the teacher had not made her comments publicly (as in a newspaper) but instead had done so privately. The Court rejected this claim in terms that take on particular significance in light of Garcetti: “Neither the [First] Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.”

Next in the line of significant Pickering decisions was in Connick v. Myers, decided in 1983. That case involved the dismissal of an Assistant District Attorney who had created a “mini-insurrection” in her office when, in conjunction with her efforts to resist a job transfer, she had distributed to colleagues a survey that asked, among other things, whether the employees “had confidence in and would rely on the word” of various superiors in the office. Focusing on the issue of what speech constituted speech on a matter of “public concern” to trigger Pickering analysis, the Court adopted a broad approach by concluding it encompassed speech on “any matter of political, social, or other concern to the community.” Nonetheless, not all employee speech qualified as Pickering-protected speech, with the Court explaining that

when a public employee speaks not as a citizen upon matters of public concern but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision allegedly in reaction to the employee’s behavior.

Four years later came Rankin v. McPherson, which involved the dismissal of a clerical employee in a county constable’s office who, in response to news reports of the attempted assassination of then President Reagan, said to a fellow employee in the office, “[I]f they go for him again, I hope they get him.” Representing the outer bounds of its public-employee, free-speech jurisprudence, the Court in Rankin held the employee could not be fired because her statements were on a matter of “public concern” and because the evidence about disruption to her public employer’s office was insufficient to justify her dismissal.

Finally, there is Waters v. Churchill, in which the plaintiff was a hospital nurse fired after making derogatory comments to a co-worker about her department. Though that case focused largely on procedural issues in adjudicating Pickering disputes, the major principle to emerge from Waters was that employers might be able to dismiss public employees for protected speech not only upon a showing of actual disruption of the workplace but also upon a showing of potential disruption.

As a group, these cases established that a public employee enjoyed First Amendment protection for speech that was on any topic of public concern, meaning “any matter of political, social, or other concern to the community.” Whether the speech was undertaken inside or outside the workplace made no difference; indeed, the speech was protected even if made in a private conversation with a fellow employee. However, speech “upon matters only of personal interest” was not protected. With respect to speech that was on a matter of public concern, the First Amendment protections yielded only if the employer demonstrated it took action against the employee out of a legitimate concern for actual or anticipated disruption and the court concluded that, on balance, that concern outweighed the value of the speech.

Notwithstanding this well-established framework, important issues about the First Amendment rights of public employees remain unresolved. For instance, the Court has never addressed the extent to which the Pickering protections – which are far less robust than the First Amendment protections extended to speech by people other than public employees – apply to speech by public employees when the speech is away from the workplace and has nothing to do with the workplace. The Court also has yet to consider the extent to which employers can invoke actual or anticipated disruption not simply within the workplace but can rely on feared disruption arising from public reaction to speech (in other words, a heckler’s veto for public employee speech). Finally, the Court has yet to spell out with any precision how courts are to calculate the value of employee speech on a matter of public concern when employing the Pickering balancing test. The recent decision in Garcetti, however, did not address any of these issues.

Garcetti v. Ceballos

Richard Ceballos, an attorney in the Los Angeles County District Attorney’s Office, was the plaintiff in Garcetti. After receiving a complaint from a defense attorney about police statements used in an affidavit used to secure a search warrant, Ceballos conducted an investigation. Concluding that the affidavit contained serious misrepresentations, Ceballos submitted a memorandum to a supervisor outlining his concerns about police misconduct and recommending the case be dismissed; he then participated in a meeting that became heated about the propriety of his actions and those of the police officers who prepared the affidavit. Ceballos subsequently was called as a witness by the defense and testified to his concerns about the affidavit.

When he later was subjected to various employment actions he believed to be retaliation for his speech about the affidavit, Ceballos filed a federal lawsuit alleging violations of his First Amendment rights under Pickering. The District Court granted summary judgment to the District Attorney, concluding the memorandum did not constitute speech on a matter of public concern because Ceballos had prepared it pursuant to his employment duties. The Ninth Circuit reversed, however, holding this was irrelevant and that speech about police misconduct was “inherently a matter of public concern.”

The Supreme Court took the case and reversed, with the opinion focusing on the meaning of a single word in the Pickering doctrine: “citizen.” As Justice Kennedy noted, the Court long ago had adopted the formulation that Pickering protections encompassed speech by a public employee “as a citizen upon matters of public concern.” The issue presented by Garcetti was whether a public employee who in the course of his or her duties spoke on a matter of public concern was speaking in some capacity other than as a “citizen”.

According to Justice Kennedy, the requirement that speech be in the employee’s capacity as a “citizen” means the employee must not be speaking pursuant to his or her official duties: “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.” And because it was part of Ceballos’ duties in the District Attorney’s Office write memoranda like the one he had, Ceballos was not speaking as a “citizen” when he used the memorandum to bring to his supervisor’s attention concerns about the police misconduct.

In justifying this narrowing of Pickering, the Court was concerned that any other rule would open the door to routine workplace communications becoming the subject of constitutional litigation. Notably, however, Justice Kennedy made a point of saying that “speech related to scholarship or teaching” might have to be exempted from this rule, though stated the Court was not deciding the issue.

The Unintended Consequences of Garcetti

By exempting from the Pickering doctrine speech by public employees made “pursuant to their official duties,” the Supreme Court in Garcetti may have substantially narrowed important First Amendment rights. As an initial matter, government employers likely will argue that much, if not all, speech that occurs in the workplace is speech pursuant to official duties. Similarly, with respect to the large number of public employees whose duties extend to interacting with the public, employers may also seek to argue that a wide range of speech beyond the workplace is taking place pursuant to official duties and therefore is exempt from First Amendment protection.

How broadly the courts will construe Garcetti is of course anyone’s guess at this point. What one can say with confidence now, however, is that Garcetti is highly likely to be a source of considerable unhappiness for government employers. Given this ruling, any public employee who learns of misconduct but is concerned about the potential for retaliation for disclosing it (and public employees rightly have such concerns) will be well-advised not to report that misconduct to supervisors or others inside the government. Rather, until and unless the case law develops making clear such reports do not constitute “official duty” speech, these employees will, to be safe, proceed directly to a local newspaper, advocacy group, or other outside organization.

Responding to this concern, the Court suggested that employers wishing to avoid this scenario could adopt “internal policies and procedures that are receptive to employee criticism,” to discourage employees from concluding that “the safest avenue of expression is to state their views in public.” While some government agencies might indeed take such an approach, it is naive to believe that, even if taken in good faith, this approach will serve as or be perceived as a substitute for the protections of the First Amendment and the federal courts.

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