Garcettized! ’06 ruling still zapping speech

It was one of the Supreme Court’s most controversial First Amendment decisions in years.

It has led to the dismissal of legions of public-employee lawsuits. It has threatened legitimate whistleblowers wanting to speak out on important matters of public concern.

Plaintiffs’ attorneys refer to it as a verb — saying their clients have been Garcettized. It’s the case of Garcetti v. Ceballos (2006), in which the Supreme Court ruled that public employees have no First Amendment protection for speech made in the course of their official job duties.

The decision dramatically affected First Amendment law by creating an additional hurdle for public employees to clear when they speak out at work about perceived problems.

Previously, public employees had to show that their speech touched on important matters — matters of public concern — and that their free-speech interests trumped their employers’ right to efficient, disruptive-free workplaces. This Pickering-Connick balancing test — named after previous Supreme Court decisions Pickering v. Board of Education (1968) and Connick v. Myers (1983) — seemed to work well for many years.

But five members of the Supreme Court changed the legal landscape, ruling that assistant district attorney Richard Ceballos did not have a First Amendment right when he wrote a critical office memorandum saying that a case should be dismissed owing to perjury by a law enforcement official. The Court reasoned that Ceballos spoke as an employee, not a citizen, when he wrote that memo. It was part of his job. (Ceballos had sued because he claimed his complaint led to his demotion.)

The problem is that oftentimes employees’ job-related speech is important for the larger public. Sometimes speaking out in a government workplace can fix a problem, expose corruption, inform the public or improve operations. YetGarcetti gives employers a large shield to thwart even legitimate free-speech complaints.

Several lower court judges have criticized the Court’s decision. Others have questioned how they are to determine whether an employee’s speech is job-related or contains elements of protected citizen speech.

Perhaps such questions will bring another public-employee case to the U.S. Supreme Court. Perhaps then the Court will alleviate the consequences of Garcetti. In the meantime, many more public employees can expect to be Garcettized.

David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.

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