The right to remain silent? Garcetti v. Ceballos and a public employee's refusal to speak falsely.

• Author: Cross, Ashley M.
• Position: LAW SUMMARY

1. INTRODUCTION

   In 2007, the Ethics Resource Center (ERC) (1) reported that nearly sixty percent of public employees had witnessed at least one act of misconduct in the workplace within the past twelve months, with the highest levels reported in local governments. (2) The most frequent transgressions observed included lying to employees, abusive behavior, and conflicts of interest. (3) Government misconduct is more frequent than private-sector misconduct when it comes to the alteration of documents and financial records. (4)

   Reports on government malfeasance strongly suggest a need for protection of those people who are in the best position to report wrongdoing--the government employee. Yet, a series of cases leading up to and following the Supreme Court of the United States' decision in Garcetti v. Ceballos, (5) have eroded protection of those employees when they seek to make statements about their employer. (6) This is further complicated by inadequate whistleblower protection laws that give little protection to public employees who speak out against a public employer.

   On August 31, 2011, the United States Court of Appeals for the District of Columbia split with the Second Circuit in determining whether a public employee who seeks to refrain from making a false statement when prompted by his employer, is protected by the First Amendment right to free speech. (7) The D.C. Circuit in Bowie v. Maddox interpreted Garcetti to provide no protection to employees making statements "pursuant to their official duties." (8) The decision is directly at odds with the Second Circuit's interpretation of Garcetti in Jackler v. Byrne, which held that statements made pursuant to an employee's official duties might still be protected if the speech has a citizen analogue. (9)

   Both Bowie and Jackler, when compared with a wide variety of public employee free speech case law, stand out as cases where a public employee is not seeking protection of his right to speak, but rather, is seeking protection of the right not to speak falsely or protection of the right to refrain from speaking at all. This Summary seeks to review the progression of public employee case law up to Garcetti and then discusses Garcetti's effect on subsequent circuit decisions attempting to apply its standards. Next, a review of the ineffectiveness of current whistleblower protection laws suggests that employees without First Amendment protection have little protection at all. Finally, it is suggested that Garcetti did not anticipate its holding to apply to cases where employees were seeking First Amendment protection of the right to refrain from speaking falsely, and thus, purports that the Supreme Court of the United States should revisit Garcetti to determine where cases such as Bowie and Jackler fit within the public employee free speech dialogue.

2. LEGAL BACKGROUND

   1. The Supreme Court and Public Employee Free Speech

      The belief that public employees could not object to conditions placed upon their respective terms of employment--including limitations on the exercise of constitutional rights--was a belief long held unchallenged. (10) This belief was canonized in 1892 by Justice Holmes, who prior to his appointment to the Supreme Court of the United States, observed that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." (11) The 1950s and 1960s saw the expansion of public employee First Amendment rights centered largely around invalidation of state efforts requiring potential public employees to reveal political and other organizational affiliations as a condition to employment. In particular, the Supreme Court of the United States in Keyishian v. Board of Regents invalidated a New York law barring employment for membership in the Communist Party and rejected the notion that public employment could be subjected to any condition upon their employment, regardless of how unreasonable. (12)

      First Amendment protection of public employee speech continues to be an evolving discussion as evidenced by more than a century of dialogue attempting to define the scope, if any, of protected speech. While the Supreme Court of the United States's 2006 decision in Garcetti is its most recent dialogue on public employee speech, the Court's 1968 decision in Pickering v. Board of Education of Township High School District 205 (13) is cited by the Court as a "useful starting point" in determining whether the First Amendment protects speech by a public employee. (14)

      In Pickering, a teacher was fired after writing a letter to the local newspaper criticizing the school board and superintendent's handling of tax revenue proposals and the unbalanced allocation of those revenues between the school's educational and athletic programs. (15) In determining that the First Amendment protected the teacher's statements, the Court stated that while public employees do not relinquish First Amendment rights as a condition of their employment with a public entity, the State's interests in regulating public employee speech "differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." (16) When a public employee is involved, Pickering suggests a balancing test "between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." (17) The Court also reaffirmed that the First Amendment protected statements by public employees on matters of public concern regardless of whether they are directed at an employee's superior. (18)

      Nearly twenty years later, the Supreme Court of the United States affirmed the use of the Pickering balancing test and reiterated that Pickering and the cases following in its wake involve the evolution of public employee rights balanced against the practical "realization that government offices could not function if every employment decision became a [Constitutional matter." (19) The Court in Connick v. Myers, adding an additional consideration to the Pickering analysis, focused on whether the plaintiffs speech could be categorized as constituting "speech on a matter of public concern." (20) In Connick, an assistant district attorney filed a wrongful termination claim after she was terminated for preparing and distributing a questionnaire soliciting the views of other assistant district attorneys concerning office policies, confidence in supervisors, and pressure to participate in political campaigns.21 The Court held that because the assistant district attorney's questionnaire largely did not cover matters of public concern, (22) and only resembled questions by a "single employee ... upset with the status quo," (23) the assistant district attorney's free speech rights were not violated when she was terminated for distributing the questionnaire. (24) The Court noted that when an employee's expression is not related to political, social, or other community or public concerns, the government "should enjoy wide latitude in managing their offices. (25) In determining whether speech is a matter of public concern, the Court concluded that a statement's "content, form, and context" should be analyzed in view of the whole record. (26)

      In 2006, the Court supplemented the Pickering-Connick analysis with a further consideration in determining First Amendment protection of public employee speech. In Garcetti v. Ceballos, a deputy district attorney alleged that he faced retaliatory transfers and demotions after he testified that an affidavit used to obtain a critical search warrant contained serious misrepresentations. (27) In holding that the deputy district attorney's speech was not protected, the Court noted that the "controlling factor in [the attorney's] case is that his expressions were made pursuant to his duties as a calendar deputy"" and that it was "immaterial whether he experienced some personal gratification from writing the memo." (29)

      First, the Garcetti Court reframed the Pickering-Connick balancing test into a two-prong analysis. The first inquiry is to determine "whether the [public] employee spoke as a citizen on a matter of public concern." (30) The Garcetti Court clarified the first prong of the Pickering-Connick analysis by stating 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." (31) If the employee did not speak on a matter of public concern, the First Amendment does not protect the employee against an "employer's reaction to the speech." (32) If the matter was one of public concern, the second inquiry under Pickering-Connick is whether the public employer had an "adequate justification for treating the employee differently from any other member of the general public." (33) B. Circuit Interpretations of Garcetti

      When Garcetti arrived at the Supreme Court of the United States' doorstep, public employee free speech protection analysis was so inconsistent that not only were there circuit splits concerning the proper analysis to be applied, but also intra-circuit splits. (34) The Court sought to clarify inaccuracies caused by the Pickering-Connick analysis by precluding protection of speech made pursuant to an employee's "professional duties," (35) but ultimately perpetuated confusion when it declined to provide a framework for determining the scope of an employee's duties. (36) Today, uncertainty of what constitutes protected speech, and more particularly, what constitutes speech pursuant to an employee's official duties, is illustrated by the diversity in approaches and decisions handed down by the circuit courts after Garcetti. (37) Garcetti requires a distinction between speech...