The Garcetti test: limiting a public employee's freedom of speech and the constitutional implications on academic speech: Garcetti v. Ceballos.

• Author: Griffith, Matthew R.

"[T]he government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch." (1)

INTRODUCTION

Freedom of speech is a fundamental right bestowed upon American citizens, (2) particularly when citizens speak on their own, expressing their own thoughts. However, courts have long recognized that the right to free speech is a limited fight, especially for citizens who work for public employers, such as governments, schools, and universities. (3) Public employees are not entitled to absolute First Amendment protection, particularly when they are acting in their professional capacity. (4)

In Garcetti v. Ceballos, the United States Supreme Court held that "when public employees make statements pursuant to their official duties, ... the Constitution does not insulate their communications from employer discipline." (5) With this holding, the Court placed a constitutional bar on employee speech made pursuant to an employee's official job duties. (6) The holding qualified prior decisions by sympathetically ruling that the First Amendment affords no protection for a public employee who speaks as an employee on a matter of personal interest.

In the interest of allowing a public employer to operate and control the official communications issuing from within its halls effectively, speech arising solely from a public employee's job is no longer entitled to First Amendment protection. (8) Garcetti thus limits the expression of public employees by strengthening the administrative hand of public employers. Academic speech will fall victim to the constitutional hurdle placed before it with the Garcetti ruling, as public university professors will be unable to hide their academic speech behind the shield of the First Amendment. Garcetti makes clear the circumstances when a public employee's speech is constitutionally protected and when the government employer's interest will trump the interest of its employees.

The first section of this Note discusses the relevant legal background, including a detailed analysis of First Amendment protection afforded public employees in the workplace. The next section presents a statement of the case, including the facts, the procedural posture, the Court's holding and reasoning, and the dissenting opinions. The third section analyzes Garcetti and the resulting constitutional implications for academic speech. The final section is the conclusion.

BACKGROUND

Although different cases have dealt with a public employee's rights concerning free speech, several cases provide the basic framework for the Garcetti decision. The first is Pickering v. Board of Education, where the Court implemented a balancing test. (9) The second is Givhan v. Western Line Consolidated School District, where the Court held that employees do not necessarily lose their protection of speech under the First Amendment just because they choose to communicate their speech privately. (10) The third is Connick v. Myers, where the Court applied the Pickering balancing test and held that when an employee speaks as an employee on matters of personal interest, instead of as a private citizen on matters of public concern, the First Amendment does not protect that speech. (11)

Pickering involved a contentious school tax vote where the Board of Education ("Board") successfully won approval for a new school bond after two attempts. (12) Subsequently, the Board twice failed to raise taxes to fund certain programs for the school. (13) Two days before the second vote, the superintendent for the Board published a letter in the local newspaper urging support of the tax increase. (14) In response, Marvin Picketing, a school teacher, wrote a letter to the newspaper attacking the Board's handling of the bond issue, alleging that the superintendent would not allow the teachers or other workers from the school to speak out opposing or criticizing the bond issue. (15) The Board fired Picketing desire his claim that his letter was constitutionally-protected speech. The trial court rejected the claim, determining that a teacher such as Picketing must refrain from making statements about the operation of the school. (17)

The central goal of Pickering was to balance the interests of an employee when speaking as a private citizen with the interests of the employer. (18) The Pickering Court tipped the balance in favor of the employee, reasoning that free and open debate is a corner stone of our society, and teachers are the members of the community with the most informed opinions about scholastic matters. (19) The Court held that allowing the teacher to contribute to public debate was more important than allowing the employer to limit the teacher's speech. (20)

Subsequently, the court used the Pickering balancing test in Givhan, where a school district fired a junior-high teacher after she criticized the school district in a private meeting with her supervisor. (21) The district court found that the main reason the school district fired the teacher was because she criticized the school system. (22) The Supreme Court held that a public employee does not per se forfeit his First Amendment protection when the speech is expressed privately. (23) The Court stated that application of the Pickering balancing test is necessary for all speech of public employees, regardless of whether expressed in a private or public forum. (24)

Finally, in Connick v. Myers, Sheila Myers worked as an Assistant District Attorney in New Orleans for five and one-half years before learning she would be transferred to a different section of the department. (25) In response to this un-welcomed transfer, Myers prepared an intra-office questionnaire that she passed out to other employees. (26) Upon learning about the questionnaire, her supervisor fired her, telling her that passing out the questionnaire was a form of insubordination. (27)

Connick held that unless the speech in question relates to a matter of public concern, scrutiny of any employment actions be falling the speaker is unnecessary. (28) More importantly, the Court limited the speech that qualifies as a matter of public concern. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." (29)

The Court concluded that even if the speech did not pertain to a matter of public concern, the speech was not automatically in the narrowly-defined realm of speech that a state can prohibit. (30) Specifically, the Court held that "the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs." (31)

If the speech related to a matter of public concern, a determination must be made as to whether the government employer was justified in terminating the employee. (32) In Connick, the Court characterized the questionnaire as touching on a matter of public interest "in only a most limited sense" and stated that it was best characterized as an employee grievance. (33) Arguably, the Court did not apply the Pickering test to the questionnaire. The Court held that when "close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." (34) When speech leads to a "disruption" in the workplace, (35) an employer is justified in taking adverse employment actions even if the speech relates to a matter of public concern. (36)

STATEMENT OF THE CASE

1. Factual History

   Richard Ceballos began working for the Los Angeles County District Attorney's Office in 1989, where he served as a calendar deputy with duties that included supervising other attorneys in the office and writing memos. (37) In February of 2000, a defense attorney working a case under Ceballos's supervision told Ceballos that he had filed a motion to traverse a warrant that had been used against his client and wanted Ceballos to investigate an affidavit that the defense attorney felt contained inaccuracies. (38)

   After conducting an investigation, Ceballos determined that the affidavit contained serious misrepresentations. (39) When Ceballos received an inadequate explanation for the inaccuracies, he contacted his supervisors and prepared a disposition memo that recommended dismissing the case. (40) In response to Ceballos's memo, a meeting was held to discuss the affidavit, and Ceballos, his supervisors, the affiant, and other employees from the sheriff's department were present. (41)

   The District Attorney proceeded with prosecuting the case, and a hearing was set to determine the defense's motion to traverse the warrant. (42) At the hearing, the defense called Ceballos to testify about the findings of his investigation. (43) Ultimately, the trial court upheld the warrant. (44) Ceballos claimed that he suffered retaliatory employment actions because of his memo, including reassignment from his previous position to a lower position, transfer to another courthouse, and denial of a promotion. (45)

2. Procedural History

   Ceballos initiated an employment grievance that was denied based on a finding that he had notsuffered any retaliation. (46) He then filed suit against his employer alleging that his employer had retaliated against him, thus violating his First and Fourteenth Amendment rights and asserted a claim under 42 U.S.C. [section] 1983. (47) The petitioners moved for summary judgment based on their assertions that their actions toward Ceballos were legitimate and that Ceballos's memo was not entitled to First Amendment protection. (48) The district court held that Ceballos's memo was not entitled to First Amendment protection...