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Commentary

"What Ails the Agencies for Which They Work":  The Parlous State of Public Employee Free Speech Law

By Marjorie Heins

The Supreme Court last week took a small step toward limiting the damage done to the First Amendment by its controversial 2006 decision in Garcetti v. Ceballos.

The Court in Garcetti denied First Amendment protection to a public employee (there, an assistant prosecutor) who had blown the whistle on police misconduct (in that case, fraudulent search warrants). The prosecutor was punished for writing a memo alerting his superiors to the fraud and then testifying to the same effect at a pretrial hearing. A majority of the Supreme Court ruled that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."1

In last week's decision, with facts not very different from Garcetti, the Supreme Court ruled that because testifying in court was not one of the job duties of the director of a statewide program for underprivileged youth, the director had First Amendment protection against retaliation after he discovered, reported, and testified about illegal conduct by a state legislator who was on the payroll of the youth program. Instead, according to the unanimous Court in Lane v. Franks, the director's testimony was speech by a citizen on a matter of public concern, and therefore protected by the First Amendment.

In reaching this welcome conclusion, however, the Supreme Court in Lane v. Franks ignored the facts that: 1) in Garcetti, the prosecutor was also punished, in part, for his testimony in court, and 2) in Lane, the director's report on the illegal conduct of the state legislator (for which, he alleged, he was subsequently fired) was well within his job responsibilities.

Passing over these similarities, the Court's opinion in Lane v. Franks, written by Justice Sonia Sotomayor, emphasized that "information related to or learned through public employment" is often of great public concern: indeed, "there is considerable value ... in encouraging, rather than inhibiting, speech by public employees" because they "are often in the best position to know what ails the agencies for which they work." Very true, but Sotomayor also reiterated the Court's longstanding but dubious distinction between "employee speech" and "citizen speech."2

That distinction is a murky one at best. As Sotomayor explained it, "the
critical question ... is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties." This is a form of words that seems almost infinitely malleable. Certainly, it is hard for public employees to predict when a critical comment or exposure of information that embarrasses the boss is "within the scope of" their duties or "merely concerns those duties."

Sotomayor's opinion in Lane v. Franks did not mention the issue of academic freedom - that is, the applicabiity of the "employee" versus "citizen" distinction to the scholarship and classroom teaching of public university professors. Scholarship and teaching are clearly "within the scope of" their duties but also often address matters of public concern, whether in literature, art, politics, philosophy, or science. This was a big issue in Garcetti, where Justice David Souter's dissent noted with alarm that the majority opinion had carved out an "ostensible domain beyond the pale of the First Amendment" that was "spacious enough to include even the teaching of a public university professor." Souter hoped that Garcetti did not mean "to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write "pursuant to . . . official duties."3

In response, the majority opinion by Justice Anthony Kennedy in Garcetti acknowledged: "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."4

This ambiguous aside holds out some hope that Supreme Court's precedents recognizing academic freedom as a "special concern of the First Amendment"5 will not be forgotten, but it does nothing to resolve the basic problem created by the Court's rigid but often unintelligible distinction between "employee" speech and "citizen" speech.

Likewise, Lane v. Franks rights the balance at least somewhat between the public right to know and government agency interests in efficiency, which can sometimes justify squelching or punishing speech by their employees, but it leaves the basic problem unresolved: that is, speech by employees that is within the scope of their duties can often involve subjects of great public concern. The public's interest in learning about the operations of government, not an artificial distinction between speech as citizens and as employees, should determine whether an employee who blows the whistle on corruption or other misconduct has First Amendment protection from punishment. There is already a balancing test under the First Amendment for deciding when a public employer's interest in workplace efficiency outweighs an employee's interest in free speech and the public's interest in knowing "what ails the agencies" of government.

June 25, 2014

1. Garcetti v. Ceballos, 547 U.S. 410, 427-28 (2006).

2. Lane v. Franks, No. 13-483 (U.S.S.Ct. June 19, 2014), http://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf

3. Garcetti, 547 U.S. at 438 .

4. Garcetti, 547 U.S. at 425.

5. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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