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Labor and Employment LawThe newsletter of the ISBA’s Section on Labor & Employment Law

December 2011, vol. 49, no. 3

Public employees and free speech

With the Supreme Court yet to decide whether the determination of official job duties is a factual or legal question, the issue of public employee free speech is of timely concern, especially when public employment is also a major issue in the national political debate. Public employee free speech is an important issue because it affects the First Amendment rights of over 20 million public workers.1 Also, the general public has an interest in the government working transparently, and punishing employees for speech may have adverse effects such as suppressing useful speech or deterring whistle-blowing.2 In other words, “public employees will speak out on matters of government abuse, waste, or fraud, but only if they are assured that they do not risk those very jobs every time they speak.”3 This essay provides background information on the issue of public employee free speech through brief analyses of the seminal cases heard by the Supreme Court, those being Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1967), Connick v. Myers, 461 U.S. 138 (1983), and Garcetti v. Ceballos, 547 U.S. 410 (2006). Next, I’ll bring your attention to legal trends in the different Circuits, focusing primarily on the Seventh and Ninth since these provide the most insight into the how the issue of official job duties can be determined as a question of law or a question of fact. Lastly, this essay concludes with practice advice for attorneys, including when and how to bring a claim. In all, this essay provides practical insight into this particular area of employment law.

Pickering dealt with a teacher being fired from his position after sending a letter to a local newspaper that was critical of the decisions made by the school board.4 Pickering’s letter was critical of the way in which the school board allocated funds between the educational and athletic programs.5 Basically, Pickering argued that too much money was spent on athletics rather than education.6 The Court decided in Pickering’s favor and found that his freedom of speech rights were violated when he was terminated for writing the letter.7 In deciding the case for Pickering, the Court balanced the interests of Pickering with those of the school’s administration and found that since the speech touched on matters of public concern, Pickering’s and the public’s interests outweighed the administration’s interests in suppressing the speech.8 This has come to be known as the Pickering balancing test in which the Court balances the employee’s interest, as a citizen, speaking on matters of public concern with the government’s interest, as an employer, in providing the particular public services efficiently.9 So for the Pickering test to be applicable, the employee must be addressing a matter of public concern, the speech cannot interfere with the employee’s job duties, and the employee must be speaking as a private citizen.10

Connick was the next major public employee free speech case taken by the Supreme Court. In Connick, a prosecutor brought a First Amendment claim challenging her termination and alleging that it was in response to her circulating a questionnaire about office policies to her coworkers.11 The fired prosecutor had solicited the opinions of her coworkers on issues such as office morale, the transfer policy, faith in the supervisors, whether or not there should be a grievance committee, and whether any workers felt compelled to assist political campaigns.12 The Court applied the Pickering balancing test and found that the employer’s interest outweighed the interest of the employee as a citizen since the questionnaire was not directly related to matters of public concern.13 In other words, the questionnaire was not protected by the First Amendment because it was very limited in how it addressed issues of public concern.14 Therefore, Pickering and Connick illustrate that the Court is willing to give the government greater authority to control the speech of its workers than the speech of the general public.

The last Supreme Court case to focus on this issue was Garcetti. Garcetti dealt with the First Amendment challenge of a deputy district attorney who alleged retaliatory employment actions due to his having relayed concerns of potential police misconduct to his supervisors in a memorandum.15 The Court focused on whether the speech was made pursuant to the district attorney’s official job duties, and by doing so, the Court expanded the employers’ power over employee speech.16 In finding that the memo was made pursuant to Ceballo’s official job duties, the Court found that he was not speaking as a citizen on matters of public concern and the First Amendment does not protect his speech.17 Thus, in Garcetti, the Court added a new threshold inquiry in determining public employee free speech cases.18 After Garcetti, courts must first determine whether the speech was made pursuant to the employee’s official job duties, and if so, the First Amendment claim fails.19 If the speech was not made pursuant to official job duties, the court then continues in applying the Pickering test.20 Therefore, there is no First Amendment protection to public employee speech as long as a court determines it to have been made pursuant to official duties.21

Most Circuits have determined the issue of speech pursuant to official job duties post-Garcetti as being only a question of law.22 However, the Third and Ninth Circuits have found this to be a question of fact and have allowed it to be determined by a jury.23 For instance, in Posey v. Lake Pend Oreille School District No. 84, 546 F.3d 1121 (9th Cir. 2009), the Ninth Circuit held that official job duties should be determined through fact-finding, and until the facts are determined, the courts should reserve judgment on the issue.24 The Seventh Circuit offers a good example of a Circuit that handles the issue as a question of law.25 This results in courts determining whether speech was made pursuant to official job duties without necessarily knowing what the job duties were.26 In other words, plaintiffs may lose the opportunity to argue whether or not their speech was made pursuant to official job duties when courts treat the issue as purely legal at summary judgment.27 Therefore, in practice, it is important to introduce evidence that argues that the official job duties of the position did not actually include the speech in question.28

First Amendment claims of public employees are brought under 42 U.S.C. § 1983.29 In practice, there are six things to consider when pursuing a First Amendment claim for a public employee. First, ask whether the employee is actually on the government’s payroll.30 If not, the public employee is left to only possible statutory or contract remedies.31 Second, find out whether the employee has actually received retaliatory action or has been substantially punished, such as being transferred or terminated.32 If the client has not been punished in these ways, courts are very unlikely going to hear a First Amendment claim.33 Third, make sure that the speech was the actual but for cause of the employee’s punishment.34 In other words, inquire into whether any additional reasons given by the employer for the punishment that don’t involve the speech would bring about the same punishment.35 Fourth, determine whether the employee’s speech actually touched on a matter of public concern.36 And when making this determination, look at the content, form, and context of the speech to decide whether it touched on a matter of public concern.37 If the speech wasn’t of public concern, courts wont consider First Amendment claims.38 Fifth, apply the Pickering balancing test and determine whether the government’s ability to efficiently provide services was adversely affected in a substantial way.39 If so, the employee will lose on the claim.40 Lastly, it is important to note that if political affiliation is not a requirement for the position, it is against the First Amendment for a public employer to consider it and use it as a basis for employment actions.41

Since Garcetti, government employers have much more power and control over the speech of their employees. This is seen mostly in the issue of speech made pursuant official job duties. However, while courts have given the government more authority as employers, attorneys for the public employees can present evidence to determine what the job duties actually were and hopefully push the case past the Garcetti threshold inquiry and into the Pickering balancing test. This would help preserve plaintiffs’ claims that otherwise would have been thrown out at the summary judgment phase. By discussing some of these key issues and providing some brief practice guides, this essay highlights that even after Garcetti, there are still ways to litigate these cases for the employees, with a focus on job duties being a question of fact as an important tactic.■

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1. Helen Norton, “Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression,” 59 Duke L.J. 1, 1 (2009).

2. Id. at 1-2.

3. Paul M. Secunda, “Neoformalism and the Reemergence of the Right-Privelege Distinction in Public Employment Law,” 48 San Diego L. Rev. 907, 923 (2011).

4. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564 (1968).

5. Id. at 566.

6. See id. at 571.

7. See id. at 565.

8. See id. at 573.

9. Id.at 568.

10. Secunda, 48 San Diego L. Rev. at 923.

11. Connick v. Myers, 461 U.S. 138, 140-42 (1983).

12. Id. at 141.

13. Id. at 154.

14. Id. at 154.

15. Garcetti v. Ceballos, 547 U.S. 410, 413-15 (2006).

16. Id. at 421-22.

17. Id. at 421-22.

18. See Norton, 59 Duke L.J. at 13.

19. Id. at 13.

20. Id. at 13.

21. Secunda, 48 San Diego L. Rev. at 914-15.

22. Sarah R. Kaplan, Note, “Public Employee Free Speech after Garcetti: Has the Seventh Circuit been Ignoring a Question of Fact?" 5 Seventh Circuit Rev. 459, 470 (2010), at <http://www.kentlaw.edu/7cr/v5-2/kaplan.pdf>. (Last visited Dec. 3, 2011).

23. Id. at 470.

24. Posey v. Lake Pend Oreille School District No. 84, 546 F.3d 1121, 1129-31 (9th Cir. 2009) (high school security specialist wrote a letter complaining of inadequate safety at the school and the Court reverses summary judgment and decides that the issue of job duties is a question of fact), See also Kaplan, Note, 5 Seventh Circuit Rev. at 471.

25. Kaplan, Note, 5 Seventh Circuit Rev.at 477, See also Spiegla v. Hull, 481 F.3d 961 (7th Cir. 2007); Davis v. Cook Cnty., 534 F.3d 650 (7th Cir. 2008); Biven v. Trent, 591 F.3d 555 (7th Cir. 2010).

26. Kaplan, Note, 5 Seventh Circuit Rev. at 482.

27. Id. at 484.

28. See id. at 487.

29. See Garcetti, 547 U.S. at 415.

30. Doug Linder, Exploring Constitutional Conflicts: Free Speech Rights of Public Employees (2011), <http://law2.umkc.edu/faculty/projects/ftrials/conlaw/publicemployees.htm>. (Last visited Dec. 3, 2011).

31. Id.

32. Id.

33. Id.

34. Id.

35. Id.

36. Id.

37. See Connick, 461 U.S. at 147-48.

38. Doug Linder, Exploring Constitutional Conflicts: Free Speech Rights of Public Employees (2011), <http://law2.umkc.edu/faculty/projects/ftrials/conlaw/publicemployees.htm>. (last visited Dec. 3, 2011).

39. Id.

40. Id.

41. Id.


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