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

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