The Garcetti Test: Limiting a Public Employee's Freedom of Speech and the Constitutional Implications on Academic Speech: Garcetti V. Ceballos
Griffith, Matthew R., Jones Law Review
"[T]he government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch." (1)
Freedom of speech is a fundamental right bestowed upon American citizens, (2) particularly when citizens speak on their own, expressing their own thoughts. However, courts have long recognized that the right to free speech is a limited fight, especially for citizens who work for public employers, such as governments, schools, and universities. (3) Public employees are not entitled to absolute First Amendment protection, particularly when they are acting in their professional capacity. (4)
In Garcetti v. Ceballos, the United States Supreme Court held that "when public employees make statements pursuant to their official duties, ... the Constitution does not insulate their communications from employer discipline." (5) With this holding, the Court placed a constitutional bar on employee speech made pursuant to an employee's official job duties. (6) The holding qualified prior decisions by sympathetically ruling that the First Amendment affords no protection for a public employee who speaks as an employee on a matter of personal interest.
In the interest of allowing a public employer to operate and control the official communications issuing from within its halls effectively, speech arising solely from a public employee's job is no longer entitled to First Amendment protection. (8) Garcetti thus limits the expression of public employees by strengthening the administrative hand of public employers. Academic speech will fall victim to the constitutional hurdle placed before it with the Garcetti ruling, as public university professors will be unable to hide their academic speech behind the shield of the First Amendment. Garcetti makes clear the circumstances when a public employee's speech is constitutionally protected and when the government employer's interest will trump the interest of its employees.
The first section of this Note discusses the relevant legal background, including a detailed analysis of First Amendment protection afforded public employees in the workplace. The next section presents a statement of the case, including the facts, the procedural posture, the Court's holding and reasoning, and the dissenting opinions. The third section analyzes Garcetti and the resulting constitutional implications for academic speech. The final section is the conclusion.
Although different cases have dealt with a public employee's rights concerning free speech, several cases provide the basic framework for the Garcetti decision. The first is Pickering v. Board of Education, where the Court implemented a balancing test. (9) The second is Givhan v. Western Line Consolidated School District, where the Court held that employees do not necessarily lose their protection of speech under the First Amendment just because they choose to communicate their speech privately. (10) The third is Connick v. Myers, where the Court applied the Pickering balancing test and held that when an employee speaks as an employee on matters of personal interest, instead of as a private citizen on matters of public concern, the First Amendment does not protect that speech. (11)
Pickering involved a contentious school tax vote where the Board of Education ("Board") successfully won approval for a new school bond after two attempts. (12) Subsequently, the Board twice failed to raise taxes to fund certain programs for the school. (13) Two days before the second vote, the superintendent for the Board published a letter in the local newspaper urging support of the tax increase. (14) In response, Marvin Picketing, a school teacher, wrote a letter to the newspaper attacking the Board's handling of the bond issue, alleging that the superintendent would not allow the teachers or other workers from the school to speak out opposing or criticizing the bond issue. …