AuthorKitrosser, Heidi
PositionContemporary Free Speech: The Marketplace of Ideas a Century Later


In Garcetti v. Ceballos, the Supreme Court held that public employees have no First Amendment protections for speech made "pursuant to their official duties." (1) Writing for the majority, Justice Kennedy assured readers that the holding did not undermine "the potential societal value of employee speech." (2) Among other things, Kennedy pointed to a "powerful network of legislative enactments--such as whistle-blower protection laws and labor codes--available to [public employees] who seek to expose wrongdoing." (3) Yet as Justice Souter pointed out in dissent and as several amici had informed the Court in their briefs, "the combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not a showing that worries may be remitted to legislatures for relief." (4) Indeed, in 2006--the year that Garcetti was handed down--federal employees lacked statutory protection for speech made pursuant to their official duties, and it was unclear in many states whether state employees were entitled to such protections. (5)

This aspect of Garcetti illustrates several difficulties that can arise when courts point to statutory protections to soften the perceived impact of limits on constitutional guarantees. First, courts may simply get their facts wrong, misrepresenting the lay of the legislative land. The same court or other courts may compound the error, repeating it as an article of faith in subsequent opinions. Even if a court correctly describes the existing statutory picture, the picture may change while courts continue to point uncritically to the original description, and while the constitutional doctrine that it helped to justify remains in place. Indeed, a number of lower courts have relied on Garcetti's, assurance of a "powerful network of legislative enactments" to soften the perceived impact of their own denials of First Amendment claims. (6)

Second and more fundamentally, courts may highlight potential legislative solutions partly to gloss over weaknesses in their constitutional reasoning. For example, the Garcetti Court suggested, at points, that there is little of value at stake when public employees speak in their capacities as employees. (7) Yet that reasoning flies in the face of the Court's acknowledgment elsewhere in Garcetti and in earlier cases that public employee speech has constitutional value largely because of the expertise that employees acquire on the job. (8) Concluding that there is no constitutional right at stake while assuring that robust legislative protections exist seems but a feeble attempt to have it both ways.

Finally, weak constitutional reasoning about the claimed right at stake can lend itself to equally dubious analysis about the relative advantages of statutory versus constitutional protections for that right. In Garcetti, for example, the Court not only downplayed public employees' unique contributions, through their work product, to discourse about matters of public concern, it also overlooked a core assumption manifest elsewhere throughout First Amendment precedent--namely, that government actors are highly motivated to suppress information that they find embarrassing or politically inconvenient. (9) Ignoring that predictive insight made it easier for the Court to conclude not only that the right at issue was not of constitutional dimension, but that the political branches could be trusted to protect it.

In this Article, I consider the influence that actual or potential statutory protections do, should, and should not have on judicial decisions about the scope of constitutional protections, looking predominantly through the lens of public employees' First Amendment rights. In Part I, I reflect on several areas in which the Supreme Court has incorporated the existence or potential existence of statutory protections into its constitutional reasoning. In Part II, I assess the Supreme Court's use of statutory protections to help justify limits on public employees' First Amendment rights in Garcetti. I explain that the Court made questionable factual assumptions about the statutory landscape. Its constitutional analysis was more precarious still, as was its related reasoning as to why it could comfortably rely on legislative protections. In Part III, I look at judicial citations to Garcetti's language about the "powerful network of legislative enactments" over the past twelve years. Most courts have simply taken Garcetti's factual assertion as an article of faith. Some also have reiterated Garcetti's reasoning to the effect that statutory protections are more fitting vehicles than the Constitution to protect public employee speech rights. In Part IV, I consider the relationship that ideally should exist between constitutional and statutory protections for public employee speech.


    It is an oversimplification to suggest, as Justice Souter did in his dissent in Garcetti, that "[t]he applicability of a provision of the Constitution has never depended on the vagaries of state or federal law." (10) This Part briefly reviews several settings in which the Supreme Court or individual Justices have surveyed the statutory landscape to inform their determinations of the scope of constitutional protections. The examples demonstrate that it can be reasonable, even necessary, to consult statutes--as well as related authorities including regulations and professional norms to which a statutory program refers--in the course of shaping constitutional guarantees and remedies. Yet the examples also reflect perils of the enterprise. Potential missteps include misreading external authorities, neglecting to revisit doctrine when those authorities change, misunderstanding the relationship between the extraconstitutional authorities and the constitutional question presented, or invoking the authorities in a manner that undermines the constitutional provisions themselves.

    1. Developments as Bases to Expand or Contract Protections in Due Process and Equal Protection Cases

      The constitutional doctrines of equal protection and substantive due process have robust but complicated relationships to legislative authorities. In the equal protection context, Supreme Court Justices at times have deemed protective legislation for particular groups to signify that the groups have political power and thus are not "suspect" or "quasi-suspect" classes that require enhanced judicial attention. In City of Cleburne v. Cleburne Living Center, for instance, the Court cited federal and state legislative accommodations for cognitively disabled persons as indicia that the group does not need courts to apply heightened scrutiny to laws that treat them differently from others. (11) Elsewhere, the Court has engaged in the flip side of this inquiry: it has asked whether laws historically have been passed to disadvantage particular groups and counted affirmative answers as factors favoring heightened review of classifications targeting those groups. (12)

      Complicating matters further, members of the Court at times have cited statutes that protect particular groups or activities to justify its own safeguarding of those same groups or actions. In the context of gender-based equal protection claims, for example, the Court has referenced the easing of statutory restraints on women's participation in economic and civic life over the course of the twentieth century. (13) This evolution, it explains, reflects a growing understanding that such restraints are unsupported by real differences between men and women. (14) The legislative transformation thus justifies heightened judicial skepticism toward gender-based laws. (15)

      In the substantive due process context, some Justices have cited longstanding statutory restraints on personal decisionmaking--for instance, choices about one's intimate partners--to argue that the liberty to make such decisions is not so constitutionally salient as to warrant protection under the Due Process Clause. (16) Other Justices have contested those historical understandings; they also have pointed to more protective modern statutes to demonstrate that those liberties have become highly valued and warrant strong constitutional protection. (17)

      These examples illustrate the reasonableness, if not inevitability, of looking at past and present statutory terrain to give content to some constitutional provisions. "Liberty" and "equal protection" are not self-defining terms. There is a logic to looking, for example, at evidence that certain personal choices are widely prized, or that certain groups are more or less likely to need judicial protection in light of their relative political strength.

      The examples also demonstrate the frequently tight connection between judicial use of extraconstitutional authorities and a judge's approach to constitutional interpretation. In the substantive due process context, for example, Justices have clashed over whether the current statutory landscape is constitutionally relevant, or whether interpreters should consider only the state of the law during or prior to a constitutional provision's drafting and ratification. (18) In the equal protection setting, one might worry that Justices will see the forest and miss the trees, deeming a group politically powerful in light of legislation not directly at issue, while overlooking discrimination that is manifest in the statute under review. (19)

      Finally, it often is difficult to discern just what the statutory landscape is or was at any given time. This problem is particularly evident where Justices in the same case dispute one another's interpretation of the facts. We see this, for example, in the debate between the majority and dissenting Justices in Lawrence v. Texas over the history of antisodomy laws. (20) Among the challenges in this and other cases is determining just what statutes are relevant to the legal...

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