For the twenty-two million Americans employed by federal, state, and local governments, free speech on the job ended in 2006. The Supreme Court’s watershed ruling in Garcetti v. Ceballos created a categorical rule that removes First Amendment protections when public employees speak pursuant to their “official duties.” From university professors to police officers to everyday civil servants, the choice became as simple as “[w]atch your mouth or relinquish your job.”‘ The ruling was widely reviled as a step backward in the Court’s free speech jurisprudence. Even the Court acknowledged that Garcetti created uncertain and sweeping effects on academic freedom, political expression, and employer retaliation that were “not fully accounted for.” Yet rather than join the extensive scholarship on Garcetti’s effects, this Comment offers a consistent rule for applying it. Worse than Garcetti’s harsh consequences is the uncertainty caused by rules that arbitrarily define the boundaries of free speech. That much is clear from the courts below. At bottom, consistency and clarity are key to protecting employee free speech.
“Navigating the shoals” of Garcetti has proven to be “tricky business” because of its factual and contextual inquiry. Consider the following facts: A government inspector refuses to sign an affidavit prepared by his employer, which describes a coworker’s poor job performance. Believing his coworker is the victim of racial discrimination, the inspector writes an affidavit praising his colleague. The employer retaliates by fabricating low performance reviews and firing the inspector. Or what if a police officer reports his coworker for police brutality? He too suffers dwindling performance reviews and is fired for refusing to change his story. In both cases, the employees seek First Amendment protection and the employers invoke the Garcetti rule. Both scenarios raise the same question: Can a government employer discipline an employee for preparing a report and refusing to retract it? The District of Columbia Circuit answered yes, and the Second Circuit answered no.
Parker Graham, Whistleblowers in the Workplace: The Government Employee’s Official Duty to Tell the Truth, 65 SMU L. Rev. 685 (2012)