U.S. Supreme Court Narrows Public Employees’ Workplace Speech Protections
October 13, 2006 by Beeson Tayer & Bodine
This past spring the United States Supreme Court issued a ruling narrowing the on-the-job, free-speech rights of public employees. In Garcetti v. Ceballos the Court held that public employees who make statements pursuant to their official duties are not speaking as citizens for First Amendment purposes. Therefore, such statements are not protected by the Constitution and a public employee may be disciplined for making such statements.
Ceballos was a supervising deputy district attorney. Pursuant to his job duties, he was asked by defense counsel to review an affidavit used by the police to gain a search warrant. Ceballos concluded the affidavit contained serious misrepresentations, and recommended to his supervisors that the case be dismissed. Ceballos’ supervisors nonetheless proceeded with the case. At a hearing regarding the validity of the search warrant, Ceballos relayed his observations regarding the affidavit. After the district attorney reassigned Ceballos, transferred him to another courthouse and denied him a promotion, Ceballos brought suit complaining that the DA was retaliating against him in violation of his free speech rights.
The Supreme Court has long held that public employees retain free speech rights at work. So long as public employees are speaking “as citizens” about matters of public concern, the Court permits only those speech restrictions that are necessary for their employers to operate effi- ciently and effectively.
In this case, the Court looked at whether Ceballos was speaking as a “citizen” or as an employee. The Court ruled Ceballos was speaking as an employee, focusing on the fact that Ceballos made his statements pursuant to his job duties. The Court then explained why “employee” speech does not enjoy the same protection as “citizen” speech: “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commis- sioned or created.”
Garcetti’s impact in the public sector may be minimized by various whistle-blower protections public employees enjoy. In California, for example, most public employees are protected by California Labor Code Section 1102.5, which protects employees who disclose violations of state and federal law, as well as administrative regulations. Where however the public employee desires to speak out on the job about an issue of widespread concern that does not amount to a statutory or regulatory violation, the employee’s only protection may well be the First Amendment. Whether the employee may speak out on that issue at work now depends on whether the employee’s speech is pursuant to the employee’s job duties. But if the employee’s speech is not required by or made pursuant to the employee’s job duties, such speech, if it addresses a matter of public concern, is still protected.
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