“But why do the majority’s concerns, which we all share, require categorical exclusion of First Amendment protection against any official retaliation for things said on the job?”
— Justice David Souter, dissenting in Garcetti v. Ceballos (2006)
In his dissent last year in Garcetti v. Ceballos, Justice John Paul Stevens warned that the majority’s decision limiting public-employee First Amendment cases was “misguided.” A five-member majority ruled that public employees do not retain their First Amendment rights when their speech occurs as part of their official job 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,” wrote Anthony Kennedy for the majority. “We reject … the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties.”
This was something of a break from past precedent — or at least a significant addition to the calculus. Traditionally, courts had examined public-employee free-speech cases under the balancing test created by the Court in its 1968 decision Pickering v. Board of Education. Under Pickering, an employee first had to show that his or her speech addressed a matter of public concern or public importance, as opposed to a personal grievance. Then, a court would balance the employee’s free-speech interests against the employer’s interests in an efficient, undisrupted workplace.
In Garcetti, the Court created an additional hurdle for public employees who assert First Amendment claims. They now must show that they are speaking as citizens instead of in connection with their official job duties. Justice Souter warned that this change drew a “strange line” that could have a negative impact. Others feared that this new employer-friendly rule represented a dramatic shift from the traditionalPickering balancing and would work against outspoken public employees in free-speech cases — and thereby work against the public’s interest in good government, as well.
Such fears have turned into reality for at least some public-employee plaintiffs.
Last year school psychologist Dorothy Houlihan sued the Sussex Technical School District, alleging that she was retaliated against after she spoke about noncompliance with the Individuals with Disabilities Education Act (IDEA). One of her claims was based on the First Amendment. In November 2006, a federal district court inHoulihan v. Sussex Technical School District Board of Education dismissed her First Amendment claim (it allowed another claim) because it found that she was speaking as an employee rather than as a citizen. The court concluded, basing its judgment onGarcetti v. Ceballos, that “Plaintiff has not alleged that she was speaking as a citizen when she voiced her concerns about alleged IDEA violations.” To the court, Houlihan made her comments in her “official duties as school psychologist and/or special educational coordinator.”
Her Salisbury, Md.-based attorney, Robin R. Cockney, said that “the federal district court’s decision granting summary judgment to the defendant on the First Amendment retaliation claim was an expansion of an opinion that was pretty expansive to begin with.” He warned that Garcetti had given enormous power to employers and their attorneys in public-employee First Amendment cases.
“Garcetti went through the defense bar like greased lightning,” said Cockney, who regularly represents public employees in First Amendment retaliation cases, “and rightly so, because it confers enormous tactical and strategic advantages on the defense. It obliterates a whole category of cases that were being brought with some success. It negatively affects many public-employee cases that are not covered by whistleblower statutes but still are clearly retaliation cases. Those cases have been winnowed down to a hearty few.”
Garcetti proved a stiff barrier to the First Amendment claims of school teacher Jillian Caruso, who alleged she was discharged from her elementary school teaching job in New York after she spoke in favor of President George W. Bush during the 2004 presidential election campaign. Caruso placed a picture of Bush in her classroom. She alleged that shortly thereafter school officials forced her to remove the picture and forced her to resign her teaching position.
Caruso responded with a First Amendment lawsuit, which the school defended against by invoking Garcetti. In March 2007, a federal district court in Caruso v. Massapequa Union Free School District refused to dismiss the teacher’s First Amendment claim, finding that there were unresolved factual issues involving the presidential portrait. But the case proceeded to trial and early this month the jury ruled in the school’s favor. In the jury instructions, the presiding federal judge wrote:
“As to the posting of the photograph of the President in Plaintiff’s classroom, I instruct you that if you find that the photograph was posted simply to instruct the children as to the identity of the sitting President of the United States and/or in connection with education on the Presidential election and not to further any personal political agenda, the posting of the photograph, standing alone, is not an act of protected speech.”
Caruso’s attorney, Paul Dashefsky, said the Supreme Court’s decision in Garcettipresented a huge problem in the case.
“It has had a dramatic negative effect of chilling the exercise of free speech even in the academic context like the Caruso case,” he said.
Another plaintiff who felt the sting of Garcetti was Adis M. Vila, former vice president of external affairs for Miami-Dade Community College in Florida. She alleged that college officials refused to renew her employment contract because she criticized what she thought was illegal or unethical behavior by the college president and others. For example, she claimed that she was punished in part for speaking out against a contract the college made with an advertising company that was not subjected to competitive bidding as required by Florida law. She also criticized the use of college funds to illustrate a college trustee’s daughter’s poetry book.
Citing Garcetti, a federal district court rejected Vila’s First Amendment claims, reasoning that her critical speech all came about as part of her official job duties. On appeal, the 11th U.S. Circuit Court of Appeals affirmed that ruling in its April 2007 decision in Vila v. Padron.
“Notably, all of Vila’s speech raised concerns about the legality of the College’s actions,” the appeals court wrote. “These statements fall squarely within her official job duties and are not protected by the First Amendment. … Because we answer the threshold question of whether Vila spoke as a citizen on a matter of public concern in the negative, Vila’s claim for retaliation fails.”
“I’m not surprised that Garcetti has such an effect,” said First Amendment expert Robert M. O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression. “We specifically warned in our amicus brief in the Garcetti case that its implications were potentially far-reaching. The central flaw in Garcetti is the failure to recognize that often great public interest lies in giving government employees broad latitude to speak in the areas of their expertise. In a sense Garcetti got it backwards.”
One uncertainty is whether Garcetti will be applied with full force in academic settings. Even the majority of the Court recognized that “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.” Whether academic freedom provides greater protection for university professors from the full reach of Garcetti remains an unsettled question.
There is no question, however, that the Supreme Court’s decision has had a tangible impact on many employees’ free-speech claims.
“Many employees have been Garcettized,” said Cockney. “Garcetti is the kiss of death for many First Amendment cases.”