Circuit Court interpretations of Garcetti v. Ceballos and the development of public employee speech.

• Jurisdiction: United States
• Author: Keenan, Thomas
• Date: 01 December 2011

INTRODUCTION

The Supreme Court has firmly established that the First Amendment's ambit covers the speech of public employees, (1) but the extent of that coverage is subject to certain constraints. One such restriction, as pronounced in Garcetti v. Ceballos, (2) consists of a categorical denial of the Constitution's protection for speech made "pursuant to [an employee's] official duties." (3) Unfortunately, the Court in Garcetti explicitly refused to provide a definite framework for delineating the scope of employment. (4) Instead, the Court merely stated that "[t]he proper inquiry is a practical one." (5)

Though many have characterized Garcetti as a hallmark of formalism in its adoption of an absolute prophylactic rule, (6) the decision "has provided considerable room for the circuit courts to carve out ... their unique and circuit-specific determinations of the [case's] import." (7) For these courts, concluding that an employee's speech fails within or without his or her official duties has become an indeterminate affair. Though the circuits do share a number of tests, Garcetti's nebulous language has allowed great leeway for courts to adopt their own unique approaches. As a result, the process of resolving a public employee's scope of employment for First Amendment purposes often varies with the jurisprudence of the individual circuits. More importantly, even where a court can plainly ascertain the scope of employment, Garcetti's categorical holding provides no leeway for speech of such public importance that it may deserve constitutional protection despite the fact that it exists because of the employee's official duties.

This Note aims to shed light on the similarities and discrepancies that exist among the federal circuit courts (8) in defining the scope of official duties according to Garcetti's mandate, as well as to propose a new take on the public employee speech analysis. Part I begins with a very brief history of the development of the First Amendment jurisprudence regarding public employee speech, including an analysis of the Supreme Court's holding in Garcetti. Part II delves into the vast array of circuit court constructions of Garcetti. This includes an examination of the factors that the circuits share as well as those that are distinctive to certain courts. Finally, Part III examines circuit decisions that seemingly take an expansive view of the scope of employment. The Part also addresses certain defenses and criticisms of Garcetti and its subsequent implementation by the courts of appeals, ending with a proposal for the future of the First Amendment's application to public employee speech. Specifically, the law should return to a balancing standard in resolving these types of cases, where the initial "scope of employment" inquiry is settled by a contextual analysis that focuses on those duties either plainly required by employers or so intertwined as to be nearly inseparable.

1. THE EVOLUTION OF PUBLIC EMPLOYEE SPEECH JURISPRUDENCE

   Until the latter half of the twentieth century, courts did not accept the notion that the First Amendment might protect public employee speech. Yet the last sixty years have yielded an intricate jurisprudence extending the First Amendment to public employees in limited circumstances. This Part presents a succinct history of the Supreme Court's treatment of public employee speech, focusing especially on the Court's decision in Garcetti.

   1. The Pre-Garcetti Era

      Constitutional recognition of public employee speech rights is a relatively recent phenomenon. Until the middle part of the twentieth century, public employees "enjoyed no recognized constitutional protection from conditions placed upon their employment, including those that restricted constitutional rights, such as free speech." (9)

      This all changed, however, in the 1950s and 1960s as the Supreme Court began to acknowledge a place within the First Amendment for such speech. Most prominently, the Court in Pickering v. Board of Education (10) repudiated the position that "public employment ... may be subjected to any conditions, regardless of how unreasonable." (11) At the same time, the Court could not deny the government's "interests as an employer in regulating the speech of its employees," interests that "differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." (12) To resolve these competing concerns, the Court instituted a standard that balanced the employee's interest in speaking on "matters of public concern" against the government's interest in operational efficiency. (13)

      The Court further refined this balancing approach in Connick v. Myers (14) by limiting recourse for employees who do not speak on matters of public concern. (15) Though it did not completely rule out constitutional safeguards for this type of speech, the Court did not deem it appropriate for federal courts to intervene in personnel decisions where public employees speak "not as ... citizen[s] upon matters of public concern, but instead ... upon matters only of personal interest." (16) Accordingly, the initial question for courts became whether the employee was speaking on an issue of public concern, or rather simply on a matter of personal significance. This inquiry was "one of law, not fact" (17) and had to "be determined by the content, form, and context of a given statement, as revealed by the whole record." (18) Only if the speech entailed a matter of public relevance could a court then proceed to Pickering's balancing standard.

   2. Garcetti v. Ceballos

      The Supreme Court's most recent pronouncement on public employee speech came in 2006 with the decision in Garcetti v. Ceballos. (19) At issue were the statements of Richard Ceballos, a deputy district attorney who discovered misrepresentations in an affidavit supporting a search warrant. (20) Mr. Ceballos informed his superiors about the inaccuracies and recommended that the case be dismissed. (21) Additionally, he testified about his misgivings during a judicial hearing on a motion challenging the search warrant. (22) Thereafter, Mr. Ceballos claimed that his employer subjected him to a number of retaliatory actions. (23)

      Adding to the foundation established by Picketing and Connick, the Supreme Court held 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." (24) Because Mr. Ceballos made his statements "as a prosecutor fulfilling a responsibility," his speech did not warrant constitutional protection. (25) However, the majority was quick to note that neither the location of the speech nor its subject matter was dispositive. (26) Instead, the controlling issue in adjudicating future cases must be whether an employee spoke pursuant to his or her official duties because, in such instances, "there is no relevant analogue to speech by citizens who are not government employees." (27) Limiting speech that "owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." (28)

      Motivating this decision was the government's "heightened interest[]" in controlling employee speech to preserve "substantive consistency and clarity" in communications that have official consequences. (29) The mere potential for constitutional protection in speaking on matters of public concern does not grant employees license to perform their jobs as they see fit. (30) What is more, the majority wished to avoid "permanent judicial intervention in the conduct of governmental operations," thereby averting any conflict with "sound principles of federalism and the separation of powers." (31)

      Yet, because neither party in Garcetti contested the classification of Mr. Ceballos's speech, the Court declined to establish a functional test for determining the scope of employment for public employees. (32) Instead, it simply noted that the proper inquiry must be "a practical one." (33) The Court also discounted any notion that employers could "restrict employees' rights by creating excessively broad job descriptions," (34) asserting that formal job descriptions are "neither necessary nor sufficient to demonstrate" that an employee's speech fell within his or her official duties. (35) Lastly, the Court addressed the concern that its ruling would discourage employees from exposing governmental misconduct, arguing instead that current whistleblower statutes and other applicable laws, as well as those internal mechanisms that government employers choose to install, provide sufficient safeguards for those who seek to reveal such activity. (36)

      The majority's reasoning provoked a number of spirited dissents, most notably from Justice David Souter. Principally, Justice Souter argued that the presence of a government paycheck does "nothing to eliminate the value to an individual of speaking on public matters," particularly government wrongdoing. (37) As he pointed out, Pickering's balancing test rests on the "recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public." (38) By categorically redefining this test in relation to an employee's scope of employment, Justice Souter maintained that the majority unreasonably deprived the public of informed opinions on important public issues. (39)

      Beyond this, Justice Souter believed that the Court's judgment would have serious ramifications for future suits. In particular, this supposed "practical" inquiry would not deter employers from defining duties comprehensively; in fact it would actually stimulate fact-bound litigation over the exact parameters of official duties. (40)...