Academic journal article Missouri Law Review

The Right to Remain Silent? Garcetti V. Ceballos and a Public Employee's Refusal to Speak Falsely

Academic journal article Missouri Law Review

The Right to Remain Silent? Garcetti V. Ceballos and a Public Employee's Refusal to Speak Falsely

Article excerpt

I. INTRODUCTION

In 2007, the Ethics Resource Center (ERC) (1) reported that nearly sixty percent of public employees had witnessed at least one act of misconduct in the workplace within the past twelve months, with the highest levels reported in local governments. (2) The most frequent transgressions observed included lying to employees, abusive behavior, and conflicts of interest. (3) Government misconduct is more frequent than private-sector misconduct when it comes to the alteration of documents and financial records. (4)

Reports on government malfeasance strongly suggest a need for protection of those people who are in the best position to report wrongdoing--the government employee. Yet, a series of cases leading up to and following the Supreme Court of the United States' decision in Garcetti v. Ceballos, (5) have eroded protection of those employees when they seek to make statements about their employer. (6) This is further complicated by inadequate whistleblower protection laws that give little protection to public employees who speak out against a public employer.

On August 31, 2011, the United States Court of Appeals for the District of Columbia split with the Second Circuit in determining whether a public employee who seeks to refrain from making a false statement when prompted by his employer, is protected by the First Amendment right to free speech. (7) The D.C. Circuit in Bowie v. Maddox interpreted Garcetti to provide no protection to employees making statements "pursuant to their official duties." (8) The decision is directly at odds with the Second Circuit's interpretation of Garcetti in Jackler v. Byrne, which held that statements made pursuant to an employee's official duties might still be protected if the speech has a citizen analogue. (9)

Both Bowie and Jackler, when compared with a wide variety of public employee free speech case law, stand out as cases where a public employee is not seeking protection of his right to speak, but rather, is seeking protection of the right not to speak falsely or protection of the right to refrain from speaking at all. This Summary seeks to review the progression of public employee case law up to Garcetti and then discusses Garcetti's effect on subsequent circuit decisions attempting to apply its standards. Next, a review of the ineffectiveness of current whistleblower protection laws suggests that employees without First Amendment protection have little protection at all. Finally, it is suggested that Garcetti did not anticipate its holding to apply to cases where employees were seeking First Amendment protection of the right to refrain from speaking falsely, and thus, purports that the Supreme Court of the United States should revisit Garcetti to determine where cases such as Bowie and Jackler fit within the public employee free speech dialogue.

II. LEGAL BACKGROUND

A. The Supreme Court and Public Employee Free Speech

The belief that public employees could not object to conditions placed upon their respective terms of employment--including limitations on the exercise of constitutional rights--was a belief long held unchallenged. (10) This belief was canonized in 1892 by Justice Holmes, who prior to his appointment to the Supreme Court of the United States, observed that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." (11) The 1950s and 1960s saw the expansion of public employee First Amendment rights centered largely around invalidation of state efforts requiring potential public employees to reveal political and other organizational affiliations as a condition to employment. In particular, the Supreme Court of the United States in Keyishian v. Board of Regents invalidated a New York law barring employment for membership in the Communist Party and rejected the notion that public employment could be subjected to any condition upon their employment, regardless of how unreasonable. …

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