The Supreme Court Curtails First Amendment Rights on the Job
In Garcetti v. Cellabllos,125 S. Ct. 1951 (2006), the United States Supreme Court effectively denied public employees First Amendment protection for speech they make pursuant to their official job duties. Writing for a 5-4 majority, Justice Kennedy said that “public employees are not speaking as citizens for First Amendment purposes and the constitution does not insulate their communications from employer discipline.” The Garcetti decision added another hurdle to the long-standing balancing test for determining public employee free speech cases, the Pickering-Connick test. The former test required the Court to ask first whether the employee was speaking on a matter of public concern or importance. If the answer was “yes”, then the Court was required to balance the public concern requirement against the employer’s interests in an efficient, harmonious workplace.
Garcetti limits the ability to bring a First Amendment claim by adding another hurdle to the already burdensome Pickering-Connick test. The public employee must now show they were speaking as citizens and not simply doing their jobs when they expressed themselves. The practical effect of Garcetti is to reward employees who go outside the chain of command and go public with their demands and issues. However, not even going outside the chain of command always works. In Andrew v. Clark, 472 F. Supp. 2d 659 (D. Md. 2007) a Federal District Court examined a free speech case where a police officer took his complaints to the media, delivering an internal memo to the Baltimore Sun. The Court determined that the officer’s report to the media did not necessarily mean the officer was acting as a citizen, and dismissed his First Amendment claims.
The biggest challenge post Garcetti is for the employee to prove they were speaking as citizens, and not as an employee. Garcetti requires detailed analysis of both the scope of the employee’s job duties and the manner in which the employee spoke. Though Garcetti requires this analysis, the Court sets forth no standard to measure the facts.
Because case law interpreting Garcetti remains uncertain, the one thing that is clear is consulting with an attorney early in the process is critical. In order to preserve a First Amendment claim it is necessary to do a detailed analysis of the caselaw in each jurisdiction. By the time an employee is terminated, it is often too late.
If you are a public employee and are being retaliated against because of something you said, call Thomas C. Wooldridge at Wooldridge and Jezek, LLP for a free consultation.