Policeman, citizen, or both? A civilian analogue exception to Garcetti v. Ceballos.

• Author: Flynn, Caroline A.

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy--especially because the value of the employee's speech to the public is no less if she is speaking pursuant to mixed motivations.

A recent Second Circuit case, Jackler v. Byrne, suggests an exception to Garcetti's categorical bar. Because the public employee's speech in Jackler had a civilian analogue--that is, because an ordinary citizen could speak in the same manner and to the same audience--the court allowed the employee's claim to proceed. The Second Circuit's exception contradicts Garcetti, but it furthers significant First Amendment values while adequately protecting public employers' interest in controlling employee speech. As such, the Supreme Court should adopt the civilian analogue exception to ameliorate Garcetti's problematic rule.

TABLE OF CONTENTS INTRODUCTION I. THE SPEECH RIGHTS OF PUBLIC EMPLOYEES AND GARCETTI V. CEBALLOS A. The Problem of First Amendment Protection for Public Employee Speech B. Garcetti v. Ceballos C. Garcetti's Misguided Line Drawing II. JACKLER V. BYRNE: A CIVILIAN ANALOGUE EXCEPTION TO GARCETTI? A. Prologue to Jackler B. Jackler v. Byrne C. Jackler's Manipulation of Garcetti III. THE MERITS OF THE CIVILIAN ANALOGUE EXCEPTION A. A First Amendment Policy Argument for the Exception B. A Defense of the Exception CONCLUSION INTRODUCTION

Speech law has evolved considerably from Justice Oliver Wendell Holmes's declaration that "[a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." (1) Today, the law prohibits the government from basing a policeman's employment on a condition that violates his First Amendment fight to freedom of expression. (2) This doctrine recognizes that the threat of dismissal from public employment is "a potent means of inhibiting speech" (3) and that the significant public interest in free and open debate on matters of public concern requires giving public employees the same meaningful speech protection that other citizens enjoy. (4) Thus, in a series of landmark decisions beginning in the 1960s, the Supreme Court crafted a First Amendment doctrine that protects public employees from employer retaliation in response to the employees' speech. (5)

This protection follows from basic First Amendment values. First, a government employee has the same interest in commenting on public matters that a nongovernment employee has. (6) Second, there is "value to the public [in] receiving the opinions and information that a public employee may disclose." (7) At the same time, the Court's decisions acknowledged that the First Amendment should not insulate a public employee's disruptive speech at a significant cost to her government employer, even if that speech related to a public matter. (8) The resulting doctrine, known as the Pickering-Connick framework, involves a threshold inquiry and a balancing test: a public employee's speech is protected only if (1) the employee was speaking on a matter of public concern (9) and (2) the employee's interest in speaking outweighs the employer's interest in controlling her speech. (10)

In 2006, the Supreme Court added a third requirement to the doctrinal framework--a requirement that drastically curtails the speech rights of government employees. In Garcetti v. Ceballos, the Court categorically denied First Amendment protection to any public employees who speak "pursuant to their official duties." (11) For a public employee to have any chance of sustaining a First Amendment retaliation claim post-Garcetti, the employee must have spoken entirely "as a citizen" and not at all "as an employee." (12) Under this test, when a public employee's speech concerns the subject matter of her employment, the government employer's interest in controlling its operations and message is assumed to always outweigh the employee's interests and the interests of the public. (13)

The line the Garcetti Court drew between the employee's dual roles as citizen and public servant lacks adequate justification. (14) As Justice Stevens wrote in dissent, "The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong." (15) If protection of a particular employee's speech is supported by First Amendment policy--that is, if the employee is speaking as a citizen on a matter of public concern--there is no compelling rationale for why the claim should not proceed to the balancing stage regardless of whether the speech's subject matter "fall[s] within a job description." (16) Due to the majority's failure to appreciate the dual roles public employees occupy simultaneously, Garcetti significantly reduced the scope of protection for those employees; it replaced the balancing framework with a bright-line rule designed to automatically privilege the interests of the government employer at the expense of the speaker and the public. To quote Justice Stevens once again, "The proper answer to the question 'whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties' is 'Sometimes,' not 'Never." (17)

A recent Second Circuit case, Jackler v. Byrne, (18) takes an important step toward remedying the dual-role problem in Garcetti's "pursuant to official duties" test. Relying on language in the Garcetti opinion stating that speech pursuant to an employee's official duties has "no relevant analogue to speech by citizens who are not government employees," (19) the Second Circuit crafted an exception to Garcetti's categorical rule: if the employee's speech does have a relevant civilian analogue--that is, if a citizen could speak in a way that is substantially similar in motivation, in the same forum, and to the same audience (20)--then it may be protected regardless of whether the employee is concurrently speaking pursuant to his professional obligations. (21) The Second Circuit applied this exception to protect a police officer who refused to alter his witness statement in an official department report concerning another officer's use of force. Finding that the officer's acted as a private citizen when he chose not to lie in an investigation, the court allowed his claim to proceed--despite the fact that he was speaking in part as a police officer (22)

It must be acknowledged that the Second Circuit's exception does not follow from a strict interpretation of Garcetti. The Garcetti Court was clear in stating that, when employees speak pursuant to their official duties, no possibility of First Amendment protection exists. (23) Not surprisingly, the Jackler decision was severely criticized by the D.C. Circuit a month afterward; the D.C. Circuit accused its sister circuit of having "g[otten] Garcetti backwards." (24) But while Jackler may be unsound under current doctrine, it is sound as a matter of First Amendment policy.

The Supreme Court appears uninterested in overturning Garcetti in the near future. Even the four Garcetti dissenters agreed that the Pickering--Connick framework needed refinement to exclude a greater number of public employee retaliation claims (though they disagreed about how) (25) Given this state of affairs, Garcetti's detractors must refine the decision at the margins. The Second Circuit's civilian analogue exception to the harsh "pursuant to official duties" rule could prove to be the compromise that fills in Garcetti's theoretical gaps and brings the doctrine back in line with First Amendment principles.

This Note argues that the Supreme Court should adopt the Second Circuit's civilian analogue exception to Garcetti's "pursuant to official duties" rule. Part I surveys the relevant pre-Garcetti First Amendment doctrine and argues that by issuing a categorical bar, Garcetti overly limited the instances in which a public employee can seek First Amendment protection. Part II explains how the Second Circuit developed the civilian analogue exception that it ultimately applied in Jackler and acknowledges that this exception does not faithfully adhere to Garcetti. Part III argues that although the civilian analogue exception does not follow from Garcetti, it properly identifies the value of public employee speech to society and recognizes the dual roles that public employees can occupy. The Supreme Court should embrace the exception as a beneficial reworking of Garcetti's problematic rule.

1. The Speech Rights of Public Employees and Garcetti v. Ceballos

   This Part discusses Garcetti v. Ceballos and argues that its rule marks a problematic shift from precedent. Section I.A details the development of public employee speech protection through Pickering v. Board of Education, Connick v. Myers, and Givhan v. Western Line Consolidated School District. Section I.B discusses Garcetti itself and examines the holding's "theoretical underpinnings." (26) Section I.C argues that Garcetti's categorical bar is unjustified as a matter of First Amendment policy.

   1. The Problem of First Amendment Protection for Public Employee Speech

      Meaningful protection for public employee speech began in Pickering v. Board of Education, in which a public school teacher brought a retaliation claim against the school board after it fired him for writing a political letter to a local newspaper. (27) In Pickering, the Court pointed to "[t]he public interest in having free and unhindered debate on matters of public importance" as the "core value" of...