U.S. Supreme Court Restricts First Amendment Rights of Public ...

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U.S. Supreme Court Restricts First Amendment Rights
of Public Employees
The United States Supreme Court recently ruled
that a deputy district attorney could be disciplined
for criticizing police conduct in obtaining a search
warrant, rejecting the employee’s claim of First
Amendment protection. The 5-4 decision in
Garcetti v. Ceballos (May 30, 2006) __ U.S. __,126
S.Ct. 1951 held that, because the employee’s
memorandum criticizing police conduct was
written “pursuant to his official duties” and not
“as a citizen,” the government’s restriction of his
speech “does not infringe any liberties the
employee might have enjoyed as a private citizen.”
The plaintiff in Garcetti, a supervising deputy
district attorney in the Los Angeles District
Attorney’s office, was asked to review a search
warrant affidavit. He concluded in an internal
memo that the affiant police officers made serious
misrepresentations, and recommended dismissal
of the case.The defense called him to testify on
a motion to challenge the warrant, which the
trial court denied. After being re-assigned to less
desirable duties in a less desirable office, he sued
for retaliation under 42 U.S.C. section 1983 for
violation of his right to free speech under the
First Amendment.The District Court granted the
employer’s motion for summary judgment. The
Ninth Circuit reversed, holding that the allegations
of police misconduct were protected under
the First Amendment analysis of Pickering v. Board
of Ed., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968) and Connick v. Myers, 461 U.S. 138, 103
S.Ct. 1684, 75 L.Ed.2d 708 (1983).
In Pickering, the high court defined a balancing
test for public employees who criticize their
employers on matters of public concern – in the
Pickering case, the racial composition of school
staff. The court must “arrive at a balance between
the interests of the [employee], as a citizen, in
commenting upon matters of public concern
and the interest of the State, as an employer, in
promoting the efficiency of the public services it
performs through its employees.”
The Ninth Circuit determined that the plaintiff’s
memo on alleged police misconduct was “inherently
a matter of public concern,” and proceeded
to balance his speech interest against his supervisors’
interest in restricting it. Noting that the
employer “failed even to suggest disruption or
inefficiency” as a result of the memo, the Ninth
Circuit struck the balance in the plaintiff’s favor. In
a special concurrence, Judge O’Scannlain of the
Ninth Circuit distinguished between speech by “a
public employee acting as an employee,” and
speech by a public employee “acting as a citizen
expressing his personal views.” Judge O’Scannlain
invited the high court to overturn Ninth Circuit
precedent holding that public employees retain
First Amendment protection when speaking pursuant
to their employment responsibilities.
The Supreme Court’s Garcetti majority accepted
Judge O’Scannlain’s invitation, and reversed
the Ninth Circuit’s decision.The court held that
the plaintiff “did not act as a citizen when he
went about conducting his daily professional
activities ... by writing a memo that addressed the
proper disposition of a pending criminal case.”
Rather, he acted “as a government employee.”
The court concluded that because the plaintiff
was not “acting as a citizen,” no balancing test
need be undertaken:
When an employee speaks as a citizen
addressing a matter of public concern, the
First Amendment requires a delicate balancing
of the competing interests surrounding
the speech and its consequences. When,
however, the employee is simply performing
his or her job duties, there is no warrant
for a similar degree of scrutiny.
June 2006

The majority criticized the Ninth Circuit’s reasoning,
stating that it “misconceives the theoretical
underpinnings of our decisions.”The court explained
that employees who “make public statements outside
their official duties” retain First Amendment
protections because they are engaged in the same
kind of activity as citizens who do not work for the
government. “When a public employee speaks
pursuant to employment responsibilities, however,
there is no relevant analogue to speech by citizens
who are not government employees.”
The majority also criticized the Ninth Circuit’s remark
that it would be anomalous to require public
employers to tolerate public criticism,while permitting
them to restrict speech on the job. The majority
noted that public employers “have the means at hand
to avoid” this anomaly, by allowing internal criticism
if they wish to encourage internal complaints.
Justices Stevens, Souter, and Breyer wrote dissenting
opinions. Justices Stevens and Ginsburg joined in
the Souter dissent. All three dissenting opinions
criticized the majority’s distinction between public
employees “speaking as citizens” and “speaking in
the course of employment.” The Souter dissent
proposed an adjustment of the Pickering balancing
test, which would permit public employers to restrict
employee speech unless the employee “speaks on
a matter of unusual importance” and “satisfies high
standards of responsibility” in so doing. Justice
Souter also warned that public employers could
restrict employees’ First Amendment rights by
drafting broad job descriptions that bring most
communications within the employees’ official
duties. Finally, Justice Souter opined that application
of the majority’s reasoning to a public university
could infringe on academic freedom.
The majority did not address Justice Souter’s proposed
“adjustment” of the Pickering balancing test.
It did “reject” his suggestion that excessively broad
job descriptions could limit employee rights, noting
that job descriptions do not necessarily track actual
employee duties.The majority noted the academic
freedom argument and declined to consider
whether its analysis should be applied to scholarship
or teaching cases.
The majority referred to “sound principles of federalism
and the separation of powers” in support
of its decision, without explaining those principles
further. The court apparently meant to express
disapproval of judicial intervention in employment
decisions made by the executive branches of state
governments. The court concluded, “The First
Amendment does not prohibit managerial discipline
based on an employee’s expressions made
pursuant to official responsibilities.”
The Final Word
The Garcetti majority assisted public employers in
at least two respects. First, by establishing a
“bright-line” rule, the majority affords public
employers greater certainty when dealing with
thorny free speech issues involving public employees.
Second, by drawing this bright line at the far end
of public employee conduct, the Garcetti decision
provides employers with substantial authority to
restrict public employees’ speech activities, for better
or for worse.
Public employers should carefully consider Garcetti
and reevaluate policies and practices in this area.
In light of the Garcetti bright line rule, public
employers’ written policies should be revised,
where needed, to fully inform public employees of
the proper boundaries of public discourse by public
employees. Notwithstanding the debate between
the Garcetti majority and minority camps on the
breadth of job descriptions, public employers
should consider reevaluating current job descriptions
to ensure that certain speech activities are
properly described as job functions.
U.S. Supreme Court Restricts First Amendment Rights of Public Employees Page 2

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