Public Service, Public Corruption and the First Amendment
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| DOI | 10.1177/0734371X14553671 |
| Author | Robert Roberts |
| Subject Matter | Articles |
research-article2014
Article
Review of Public Personnel Administration
2015, Vol. 35(4) 386 –405
Public Service, Public
© The Author(s) 2014
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DOI: 10.1177/0734371X14553671
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First Amendment: The
Implications of Lane v. Franks
for Public Employee Public
Corruption Watchdogs
Robert Roberts1
Abstract
The 2006 U.S. Supreme Court decision in Garcetti v. Ceballos imposed significant new
restrictions on the First Amendment freedom of speech rights of public employees.
Specifically, the Garcetti majority held that the First Amendment did not provide
any protections for internal or external communications made in the course of
performing their official duties. The 2014 case of Lane v. Franks provided the U.S.
Supreme Court the opportunity to decide whether the U.S. Court of Appeals for the
Eleventh Circuit properly denied First Amendment protection for testimony given by
an employee of an Alabama community college who testified during a federal public
corruption trial. The U.S. Supreme Court, by a vote of 9 to 0, held that Garcetti did
not block the employee from proceeding with a claim that the community college
retaliated against him for his trial testimony. The U.S. Supreme Court recognized a
public corruption testimony exception to Garcetti.
Keywords
discipline, discrimination, legal/constitutional issues, workplace environment/culture,
professionalism
In Pickering v. Education (1968), the U.S. Supreme Court held that public employees
have a First Amendment freedom of speech right. To implement the new mandate,
1James Madison University, Harrisonburg, VA, USA
Corresponding Author:
Robert Roberts, James Madison University, Harrisonburg, Virginia 22801, USA.
Email: robertrn@jmu.edu
Roberts
387
Pickering established a two-part balancing test. First, the public employee must speak
out on a matter of public concern. Second, the speech must not unduly disrupt the
efficiency of the employee’s agency (Rosenbloom, 1975, 2014b). A decade later, in
Givhan v. Western Line Consolidated School District (1979), the U.S. Supreme Court
extended to the internal speech of public employees the same protection Pickering had
granted to the external speech of public employees. However, in Garcetti v. Ceballos
(2006), the U.S. Supreme held that the First Amendment does not protect the speech
of public employees in the course of performing “their official duties” (p. 421; Barger,
2013, p. 1543; Rosenbloom, 2014a, p. 34; Wiese, 2010, pp. 509-529). As explained by
Justice Kennedy, “[w]hen . . . the employee is simply performing his or her job duties,
there is no warrant for a similar degree of [First Amendment] scrutiny,” (Garcetti v.
Ceballos, 2006, pp. 422-423).
The U.S. Supreme Court did not issue Garcetti in a vacuum. The decision reflected
an ongoing effort by some Justices “to limit judicial intrusion into public personnel
decisions . . .” (Rosenbloom, 2014b, p. 150). From the perspective of Justices seeking
to limit judicial oversight of public personnel administration, public managers needed
the same flexibility as private sector managers to maintain the efficiency of their orga-
nizations. Also, from this perspective, courts should not force public organizations to
embrace “divergent thinking” (organizational dissent) within their organizations
(Martin & Rifkin 2004, p. 228; O’Leary, 2010, p. 17). “Employers have heightened
interests in controlling speech made by an employee in his or her professional capac-
ity,” maintained Justice Kennedy in Garcetti. “Official communications have official
consequences, creating a need for substantive consistency and clarity,” continued
Justice Kennedy (p. 422). Furthermore, argued Kennedy, “[s]upervisors must ensure
that their employees’ official communications are accurate, demonstrate sound judg-
ment, and promote the employer’s mission” (p. 423).
Seeking to downplay the impact of Garcetti, Justice Kennedy stressed that federal
and state whistleblower statutes provided public employees reporting possible public
corruption protection from retaliation. “Exposing governmental inefficiency and mis-
conduct is a matter of considerable significance,” argued Justice Kennedy in Garcetti
(p. 425). And there is a “powerful network of legislative enactments—such as whistle-
blower protection laws and labor codes—available to those who seek to expose wrong-
doing,” continued Kennedy (p. 425). In fact, Kennedy lacked any objective research to
make such a broad generalization regarding the effectiveness of whistleblower laws.
At the time of the Garcetti decision, federal and state whistleblower laws had proven
terribly ineffective in protecting public employees from retaliation for disclosing
waste, fraud, abuse, official misconduct, and public corruption in government agen-
cies (Fisher, 1991; Peffer et al., 2013).
In Lane v. Franks (2014a), the U.S. Supreme Court held that Lane’s sworn grand
jury and criminal trial testimony fell outside his official duties as defined by Garcetti
(Lane v. Franks, 2014a). Yet, Lane v. Franks (2014a) did little to repair the damage
done by Garcetti to the First Amendment rights of public employees. First, the article
argues that the majority in Garcetti badly underestimated the chilling impact of
Garcetti on public sector whistleblowers. Second, the article argues that Garcetti had
388
Review of Public Personnel Administration 35(4)
a particularly onerous impact on public employees that reported instances of alleged
official misconduct and public corruption up the chain of command. Third, the article
argues that Lane v. Franks (2014a) has opened the door for the lower federal courts
and ultimately the U.S. Supreme Court to recognize a broad First Amendment freedom
of speech public corruption exception to Garcetti. Fourth, the article argues that
Garcetti has provided public employees a greater incentive to take their dissent under-
ground (O’Leary, 2014; Thompson, 1985). Unless the lower federal courts and the
U.S. Supreme broadly interpret Lane v. Franks (2014a), this will certainly force larger
and larger numbers of public employees to seriously consider adopting guerrilla gov-
ernment tactics such as remaining in the closet and “moving clandestinely behind the
scenes, [like] salmon swimming upstream against the current of power” or face retali-
ation (O’Leary, 2010, p. 8).
Building the Public Service Model and the Evolution of
the Freedom of Speech Rights of Public Employees
For decades before the U.S. Supreme Court decision in Pickering v. Education (1968),
federal and state courts routinely found that as a condition of employment, govern-
ments could restrict public employees from exercising fundamental constitutional
rights (Rosenbloom, 2014b). This included the First Amendment right to freedom of
speech and association (Rosenbloom, 2014b). In McAuliffe v. New Bedford (1892), for
instance, Justice Oliver Wendell Holmes, writing for the highest Massachusetts state
court, stressed that “the petitioner may have a constitutional right to talk politics, but
he has no constitutional right to be a policeman” (p. 216). Under the privilege doctrine,
public employers had the authority to “impose upon the public employee any require-
ment it [saw] fit as conditional to employment” (Dotson, 1955, p. 77). This included
regulating both the on-the-job and off-the-job conduct of their employees. During the
1940s and 1950s, the privilege doctrine permitted local, state, and federal government
agencies to fire thousands of public employees on the grounds that their alleged rela-
tionships with subversive organizations made them security risks (Rosenbloom,
2014b). The vast majority of these public employees never learned the content and
source of the information that led to their termination.
During the 1960s, the U.S. Supreme Court replaced the privilege doctrine with a
new public service model. The public service model required federal courts to balance
“the employee’s interest in effective administration and policy implementation” with
the strong public interest in having public employees expose “serious waste, fraud,
abuse, or other maladministration” (Rosenbloom, 2014b, p. 127). Despite the fact that
the public service model limited the constitutional rights of public employees, public
employees fared much better under the public service model than they had under the
public employment privilege doctrine (“Developments in the Law,” 1984).
However, many public employers deeply resented the courts monitoring their per-
sonnel policies and practices. Many public employers argued that increased judicial
monitoring led to decreased efficiency. This argument hit a responsive court with U.S.
Supreme Court Justices who viewed private sector employment practices as much
Roberts
389
more efficient than those used in the public sector (Rosenbloom, 2014b). Much like
the private sector, public employers need considerable flexibility to punish their
employees for various types of conduct including speech to maintain organizational
efficiency (Shinar, 2013). This fact helps to explain why, since the 1960s, “the Supreme
Court has vacillated between entering the public employment relationship by strength-
ening constitutional rights of public employees . . . or [by] withdrawing from such
involvement in public...
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