Talking Drugs: the Burdens of Proof in Post-garcetti Speech Retaliation Claims

• Publication year: 2021

TALKING DRUGS: THE BURDENS OF PROOF IN POST-GARCETTI SPEECH RETALIATION CLAIMS

Thomas E. Hudson

Abstract: Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court's complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under "Pickering balancing," and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the "Pickering balancing" burden, and that the Court should require employers to meet their burden with clear and convincing evidence. Further, when applying the speech retaliation test to law enforcement employees criticizing the war on drugs, the Court should rule that it constitutes speech as a "citizen on a matter of public concern," and should abandon the quasi-military rule when engaging in "Pickering balancing."

INTRODUCTION

"[L]egalization of drugs would end the drug war and related violence in Mexico."(fn1) Following his statement, Bryan Gonzalez's employer-the United States Custom and Border Patrol-fired him for the content of his speech.(fn2) Gonzalez's case is not unique-state and federal employers alike have fired employees for verbally opposing the drug war.(fn3) Similarly, public employers have fired employees for associating with Law Enforcement Against Prohibition (LEAP), an organization that supports legalizing marijuana and ending the drug war.(fn4)

These new cases highlight a doctrine that the U.S. Supreme Court created in Pickering v. Board of Education.(fn5) That doctrine grants public employees the right to sue government employers for termination in violation of the First Amendment if their termination is based on speech made as "a citizen on a matter of public concern."(fn6) Over time, the Court has complicated the speech retaliation test developed in Pickering (speech retaliation test) by splitting it into three prongs of ever increasing detail.(fn7) The Court's creation and modification of these three prongs have greatly narrowed the situations in which employees can prevail on a speech retaliation suit.(fn8)

A court engages in a three-prong test when assessing an employee's speech retaliation claim for comments about the war on drugs. The employee must prevail on each of the three separate prongs to win a speech retaliation suit. The first prong requires a court to ascertain whether or not the speech is made as a citizen on a matter of public concern.(fn9) If the employee proves that he or she prevails on this first prong, a court will subject the claim to the second prong, which the Court refers(fn10) to as "Pickering balancing."(fn11) This balancing analysis requires a court to determine whether the employee's interest in speaking outweighs the employer's interest in efficiently running a law enforcement agency.(fn12) Finally, where a court finds that the employee prevails on both the first and second prongs, a court will engage in a third prong, requiring it to determine whether the speech actually caused the employee's termination.(fn13)

While the first and third prongs of the speech retaliation test have clearly established burdens of proof, the second prong-Pickering balancing-does not. The courts have failed to reach a consensus regarding which party has the burden of proof. In fact, the courts have failed even to define the burden.

Pickering balancing's lack of clarity in regards to its burden leads to unpredictable and overabundant litigation because the employers' and employees' rights are not clearly delineated. The lack of clarity will lead to costly litigation, as courts struggle to conduct an unclear balance of the employer and employee interests. Clarifying the balancing's burden of proof will not only streamline litigation, but will also help prevent employees from being fired for offensive speech by more effectively informing employers and employees as to their rights and responsibilities. Part I of this Comment will discuss the prevalence of law enforcement employers firing their employees for speaking out against drug laws. Part II will outline the modern speech retaliation test and its three main prongs, including each prong's unique burden of proof. Part III will argue that the Court should place a burden of clear and convincing evidence on the employer whenever the Court conducts Pickering balancing. Part IV will apply the speech retaliation test to instances where law enforcement employees criticize the war on drugs, and will argue that the Court should apply the speech retaliation test in a manner that favors employee speech.

I. STATE AND FEDERAL LAW ENFORCEMENT AGENCIES HAVE RECENTLY FIRED THEIR EMPLOYEES FOR OPPOSING THE DRUG WAR

Law enforcement agencies have recently fired their employees for verbally opposing the war on drugs.(fn14) Employers have fired employees for such speech both inside and outside of the workplace.(fn15) Consider Bryan Gonzalez, a New Mexico Border Patrol agent,(fn16) who made a number of controversial assertions while talking with a coworker during his shift break.(fn17) These included a statement that the "legalization of drugs would end the drug war and related violence in Mexico,"(fn18) and mention of the website LEAP.(fn19)

Gonzalez's coworker reported these comments.(fn20) After an internal investigation, Gonzalez's superior fired him, stating that Gonzalez had "personal views that were contrary to the core characteristics of Border Patrol Agents, which are patriotism, dedication, and esprit de corps."(fn21)

Gonzalez had no administrative remedy because he was a probationary employee when he was fired.(fn22) Gonzalez subsequently brought a lawsuit(fn23) for speech retaliation in violation of the First Amendment's guarantee of free speech.(fn24)

Gonzalez's case is one of a number of recent cases. Joe Miller, a local probation officer in Mohave County, Arizona, is currently suing for speech retaliation.(fn25) His employer fired him for signing a letter-in his personal capacity-from LEAP. The letter supported Proposition 19, which proposed to legalize the recreational use of marijuana in California.(fn26) The government argued that because Miller's signature included his job title, the public could misinterpret Miller's personal support to constitute the parole agency's endorsement of the initiative. Miller countered that because the letter had a disclaimer at the bottom stating that "[a]ll agency affiliations are listed for identification purposes only[,]"(fn27) it was sufficiently clear that he was speaking as a private citizen, rather than on behalf of his law enforcement employer.

Another speech retaliation case occurred a few years before Gonzalez and Miller began their suits. Mountlake Terrace Police sergeant Jonathan Wender settled his wrongful termination suit for $815,000.(fn28) One of his key legal arguments(fn29) was that the government violated the First Amendment by retaliating against him for speaking out against the drug war (both internally and in the press).(fn30) Because this argument was part of his successful claim, pro-marijuana legalization groups have taken this case as a victory for their cause.(fn31) This comment will next discuss the multi-pronged speech retaliation test that governs the cases discussed above.

II. THE COURT MUST ENGAGE IN A MULTI-PRONGED TEST WHEN ANALYZING A SPEECH RETALIATION CLAIM

Although government employees can challenge a termination as unconstitutional speech retaliation,(fn32) not all employee speech is protected,(fn33) and not all protected speech can sustain a claim for retaliatory dismissal.(fn34) The modern speech retaliation claim requires a court to analyze three separate prongs, each with a unique burden of proof. Recently, Garcetti v. Ceballos(fn35) blurred the lines between the prongs, further complicating the three-prong test.

A. A Modern Speech Retaliation Claim Requires Courts to Conduct a Three-Prong Test, with Each Element Having Its Own Burden of Proof

Over time, the Court has developed a jurisprudence governing the free speech rights of public employees.(fn36) The Court's primary purpose in early cases was to establish that a speech retaliation claim actually existed.(fn37) As a result, the older speech retaliation cases did not employ a multi-prong test.(fn38) However, the Court's legal framework to address a speech retaliation claim evolved over time.(fn39)

During this evolution, the Court broke the speech retaliation test down into a multi-faceted inquiry.(fn40) Today, the speech retaliation test's three prongs are (1) whether the employee speaks as a citizen on a matter of public concern,(fn41) (2) whether the employee's interest in speaking outweighs the employer's interest "in promoting the efficiency of the public services it performs,"(fn42) and (3) whether the proposed speech caused the employee's termination.(fn43)

1. Employees Bear the Burden of Proving that They Made Their Speech as a Citizen on a Matter of Public Concern

The first prong requires that the employee speaks as a citizen on a matter of public concern.(fn44) The employee bears the...