Talking Drugs: The Burdens of Proof in Post-Garcetti Speech Retaliation Claims
Hudson, Thomas E., Washington Law Review
Abstract: Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court's complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under "Pickering balancing," and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the "Pickering balancing" burden, and that the Court should require employers to meet their burden with clear and convincing evidence. Further, when applying the speech retaliation test to law enforcement employees criticizing the war on drugs, the Court should rule that it constitutes speech as a "citizen on a matter of public concern," and should abandon the quasimilitary rule when engaging in "Pickering balancing."
"[Legalization of drugs would end the drag war and related violence in Mexico."1 Following his statement, Bryan Gonzalez's employer - the United States Custom and Border Patrol - fired him for the content of his speech.2 Gonzalez's case is not unique - state and federal employers alike have fired employees for verbally opposing the drug war.3 Similarly, public employers have fired employees for associating with Law Enforcement Against Prohibition (LEAP), an organization that supports legalizing marijuana and ending the drug war.4
These new cases highlight a doctrine that the U.S. Supreme Court created in Picking v. Board of Education? That doctrine grants public employees the right to sue government employers for termination in violation of the First Amendment if their termination is based on speech made as "a citizen on a matter of public concern."6 Over time, the Court has complicated the speech retaliation test developed in Pickering (speech retaliation test) by splitting it into three prongs of ever increasing detail.7 The Court's creation and modification of these three prongs have greatly narrowed the situations in which employees can prevail on a speech retaliation suit.8
A court engages in a three-prong test when assessing an employee's speech retaliation claim for comments about the war on drugs. The employee must prevail on each of the three separate prongs to win a speech retaliation suit. The first prong requires a court to ascertain whether or not the speech is made as a citizen on a matter of public concern.9 If the employee proves that he or she prevails on this first prong, a court will subject the claim to the second prong, which the Court refers10 to as "Pickering balancing."11 This balancing analysis requires a court to determine whether the employee's interest in speaking outweighs the employer's interest in efficiently running a law enforcement agency.12 Finally, where a court finds that the employee prevails on both the first and second prongs, a court will engage in a third prong, requiring it to determine whether the speech actually caused the employee's termination.13
While the first and third prongs of the speech retaliation test have clearly established burdens of proof, the second prong - Pickering balancing - does not. The courts have failed to reach a consensus regarding which party has the burden of proof. In fact, the courts have failed even to define the burden.
Pickering balancing's lack of clarity in regards to its burden leads to unpredictable and overabundant litigation because the employers' and employees' rights are not clearly delineated. The lack of clarity will lead to costly litigation, as courts struggle to conduct an unclear balance of the employer and employee interests. Clarifying the balancing's burden of proof will not only streamline litigation, but will also help prevent employees from being fired for offensive speech by more effectively informing employers and employees as to their rights and responsibilities. …