The Supreme Court and the Deconstitutionalization of the Freedom of Speech Rights of Public Employees

• DOI: 10.1177/0734371X06298254
• Date: 01 June 2007
• Published date: 01 June 2007
• Subject Matter: Articles

Review of Public Personnel

Administration

Volume 27 Number 2

June 2007 171-184

© 2007 Sage Publications

10.1177/0734371X06298254

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171

The Supreme Court and

the Deconstitutionalization

of the Freedom of Speech

Rights of Public Employees

Robert Roberts

James Madison University

In Garcetti v. Ceballos (2006), the United States Supreme Court held that the First

Amendment of the U.S. Constitution does not prohibit a public employer from disci-

plining a public employee for the contents of an official memorandum made in the

course of the performance of official duties, even if a federal court finds that the con-

tents of the memorandum involved a matter of “public concern.” This article argues that

the Garcetti decision modifies the Pickering v. Board of Education (1968) and Connick

v. Myers (1983) two-part test by requiring federal courts to first determine whether or

not the public official made a communication in the course of the performance of offi-

cial duties. The article also argues that it remains to be seen whether the Garcetti deci-

sion will have a significant impact on the willingness of public employees to make use

of official channels to raise legitimate concerns over actions taken or not taken by their

organizations.

Keywords: freedom of speech; government employees; First Amendment; United

States Supreme Court; Pickering v. Board of Education

On May 30, 2006, the United States Supreme Court, in Garcetti v. Ceballos

(2006), held that when public employees make statements pursuant to their

official duties, they are not speaking as citizens for First Amendment purposes, and

the Constitution does not insulate their communications from employer discipline

(Garcetti v. Ceballos, 2006, p. 1951). Speaking for the five-vote majority (Kennedy,

Roberts, Alito, Scalia, and Thomas), Justice Kennedy stressed that the court’s previ-

ous public employee freedom of speech cases had sought both to promote the indi-

vidual and societal interests that are served when employees speak as citizens on

matters of public concern and to respect the needs of government employers

attempting to perform their important public functions (Garcetti v. Ceballos, 2006,

p. 1959). Equally important, Justice Kennedy argued that government employers

should have sufficient discretion to manage their operations (Garcetti v. Ceballos,

2006, p. 1960) and that “[e]mployers have heightened interests in controlling speech

made by an employee in his or her professional capacity” (Garcetti v. Ceballos,

2006, p. 1960). Justice Kennedy explained that a court reviewing the First

Amendment retaliation claims of a public employee simply must first determine