1st Amendment Rights for Public Employees
Public employees are not always protected by the 1st Amendment when speaking in the course of their public duties. A recent United States Supreme Court opinion, Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) makes a distinction between speech of public employees as part of their job duties and their speech as citizens. The Court said: “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for 1st Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
This was a close decision — so close, in fact, that the Court held oral argument twice so that Justice Alito could hear the arguments and cast a vote, suggesting that the Court was deadlocked. In analyzing the facts of the case, the Court reiterated its holding in Connick v. Myers, 103 S. Ct. 1684 (1983) that “a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.”
While recognizing society’s interests when public employees speak as citizens on matters of public concern, the Court held that the dispositive aspect of the Ceballos case was that his expressions were made pursuant to his duties in the D.A.’s office, a fact that Mr. Ceballos readily admitted. The Court found that this fact distinguished Ceballos’ case from other cases in which the 1st Amendment provides protection against discipline. Dissenters on the Court argued that a public employee should be entitled to 1st Amendment protection if he speaks on a matter of unusual importance and satisfies high standards of responsibility. They looked to the previously relied upon standards of Pickering v. Board of Education and Connick. These cases recognize a 2-prong inquiry for protection under the 1st Amendment. Is the speech about a matter of public concern? If so, then under these decisions, the Court had the duty to balance the competing interests of the employer and the employee. Traditionally, the second prong of the test centered on whether the utterance significantly disturbed the workplace.
In the Ceballos case there was no evidence that the speech caused any lack of effectiveness in the operation of the D.A.’s office. The dissenters argued that the Ceballos decision created a new rule which provides incentives for a public employee to voice his concern in public before taking them to his superiors, because the public utterance would be protected. The immediate reaction from pundits was that the effect of the Ceballos decision will create a chilling effect on whistle-blowing at work.
Only time will tell as to the validity of this opinion. Others, along with the Court’s dissenters, questioned whether the decision will apply to public college and university professors, whose writings and speech are part of their official duties. The majority opinion appears to have countenanced the question and specifically reserved it for another day and another case.
If you have any questions, comments or issues for discussion, email me at lydia at sig dot msstate dot edu. Thanks for reading and have a good day.