Source: Parker Graham, Southern Methodist University Law Review, Summer 2012
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 “watch 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….
This Comment clarifies the scope of official duties under Garcetti when a government whistleblower suffers employer retaliation for filing a report and refusing to retract it. Section I is a historical overview of First Amendment rights for government employees. Section II describes the confusion under current law resulting from the D.C. and Second Circuit split. Section III answers two central questions raised in the whistleblower context. First, how should courts determine whether an employee’s report or complaint was made pursuant to his official duties? Asking what an employee was “paid to perform” is a more effective framework than the Second Circuit’s unworkable civilian analog test. Second, precisely which duties arise in the circumstance of government whistleblowers? Particularly as plaintiffs have argued to escape Garcetti, do government employees have an official duty “to tell the truth” and a distinct civilian duty “to refuse to lie”? To the contrary, government employees have only an official duty to tell the truth. Courts must choose between faithfully applying the categorical Garcetti rule and crafting permissive loopholes. Regardless of Garcetti’s policy pitfalls, this Comment provides a framework for consistently applying the Court’s holding. Clarity is paramount for the nation’s twenty-two million government workers, who must know where their First Amendment rights begin and where they end.