Developments in the Law: Garcetti v. Ceballos and the Workplace Freedom of Speech Rights of Public Employees

Abstract

On May 30, 2006 the Supreme Court handed down a 5–4 decision in the case of Garcetti v. Ceballos, announcing 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.” Previously, the Court had held in Pickering v. Board of Education (1968) that the First Amendment’s protection of freedom of speech generally prohibited public employers from firing or disciplining employees for speaking out on matters of “public concern.” The Pickering decision established a two‐part test that first required federal courts to determine whether the employee had spoken out on a matter of public concern and then whether the disruptive impact of the employee’s statement justified the disciplinary action. This article argues that the Garcetti decision may deter many public employees from disclosing governmental inefficiency and misconduct and presenting dissenting viewpoints on matters of clear public concern. Consequently, the decision may make it more difficult for the leadership of public agencies to uncover inefficiency and misconduct.

Madison’s Ratchet: Ambition Counteracting Ambition and the Aggregation of Political, Managerial, and Legal Controls Over Federal Administration

“…From the beginning of John Marshall’s tenure as Chief Justice of the United States (1801-1835) to the present, the Supreme Court and the lower federal courts have played an important role in shaping federal administration. In more recent years, public administration scholars have defined the relationship between the federal courts and administrative agencies as a “new partnership,” that demonstrates how the judiciary can influence public administration within the bounds of its constitutional functions (Bazelon, 1976; Newbold, 2010; O’Leary & Wise, 1991; Roberts, 2007; Rohr, 1986; Rosenbloom et al, 2010). The new partnership complicates administrative decision making, enforcement, and other actions.…”

Heffernan v. City of Paterson (2016): A New Element in Constitutional Tort Law—It’s Not Necessarily What the Public Employer Did, but What It Intended to Do That Counts

“…Second, in Garcetti v. Ceballos (2006, p. 421), the Supreme Court held that "work product" speech by public employees, regardless whether it is on matters of public concern, may subject them to adverse personnel actions. In the Court's words, "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" (Garcetti v. Ceballos, 2006, p. 421; see also Roberts, 2007). 2 These general principles do not resolve a matter of particular pertinence to Heffernan: What steps must the public employer take to determine what the employee said or otherwise expressed?…”

“…Heffernan concerned what was perceived to be political activity, which is often lawfully banned by political neutrality regulations. However, Heffernan opens the door to other kinds of free-speech cases, including whistleblowing, where the parameters of constitutionally protected public employee speech are often uncertain (e.g., Garcetti v. Ceballos , 2006; Rankin v. McPherson , 1987; Roberts, 2007; Waters v. Churchill , 1994 Souter dissent; Connick v. Myers , 1983). Justice Antonin Scalia once referred to this general area of the law as “uncertain, case-by-case, balance-all-the-factors-and-who-knows-who-will-win litigation” ( Board of County Commissioners, Wabaunsee County v. Umbehr , 1996, p. 711; O’Hare Truck Service v. City of Northlake , 1996).…”

Guerrilla Statesmanship: Constitutionalizing an Ethic of Dissent

“…This was done in part to make public management resemble private management (Roberts ). The relegation of the role of citizen to outside the agency was designed to ensure managerial authority and mandate employee loyalty, but it may also unintentionally prevent the uncovering of managerial mismanagement and fraud (Roberts ). This is a problem in following an ethos of at‐will employment.…”