Tough Talk from the Supreme Court on Free Speech: The Illusory Per Se Rule in Garcetti as Further Evidence of Connick’s Unworkable Employee/Citizen Speech Partition

摘要

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a ninth vote the Court was deadlocked or even split three ways. After reargument, the Court held, in a 5-4 opinion with two dissents, that speech made “pursuant to an employee’s official duties” is not citizen speech for First Amendment purposes.Garcetti was a long-overdue effort to address a decades-old ambiguity in the Court’s First Amendment jurisprudence. In 1968, the Court had established the Pickering balancing test to weigh the competing interests of government employer and government employee in First Amendment retaliation claims. Then in Connick, it created a threshold question for such claims: only speech made “as a citizen on matters of public concern” could proceed to analysis under Pickering. One issue had remained unclear after Connick: Is there ever a time when an employee speaks “as a citizen on matters of public concern” in the course of doing her job? That is exactly what Richard Ceballos said he was doing when he wrote an internal memo to his superiors in the Los Angeles District Attorney’s Office critical of a questionable affidavit used to obtain a search warrant; he claimed they later retaliated against him. The Supreme Court found that because the memo was prepared as part of Ceballos’s duties, it was not citizen speech and thus was not protected.This Article analyzes how published district and appellate court decisions issued in the months immediately following Garcetti illustrate that certain First Amendment retaliation claims are now foreclosed. What is perhaps surprising, however, is the type and number of claims that are surviving Garcetti. Circuits had often referred to the approach chosen by the Court as a per se rule, but Garcetti is a per se rule with an Achilles’ heel—a refusal to say how “official duties” are to be defined—that gives plaintiffs unexpected leverage to resist dismissal and summary judgment.This Article analyzes how courts have interpreted the “pursuant to the employee’s official duties” requirement and on what grounds Garcetti has been distinguished. It offers examples that call into question the assertion that First Amendment protection is inappropriate and unnecessary because other protections are available. Having concluded that current whistleblower statutes have significant gaps and that going public with negative information would likely only mean the employee who suffers retaliation wins the battle (the Connick/Garcetti test) and loses the war (the Pickering balancing test), the Article ends by arguing for the approach found in the Garcetti minority opinion advocating an “adjustment” of Pickering that would take into account the public’s interest in protection of the speech in question regardless of the capacity in which the speaker made the statements.