The Garcetti Decision: Its Impact on Free Speech
by Attorney Theresa R. Gabriel
Cullen Weston Pines & Bach LLP

The U. S. Supreme Court’s 2006 decision in Garcetti v. Ceballos[i] eroded the constitutional free speech rights of public employees. Garcetti increases public employers’ control over public employee speech, and, consequently, increases public employers’ ability to discipline employees for speech.

This article discusses how Garcetti changes the landscape of public employee free speech rights. By examining how our own federal circuit court, the Seventh Circuit Court of Appeals, applies Garcetti, WPPA members may gain a better understanding of what speech might fall outside the protection of the First Amendment.

The Balancing Test

Before Garcetti, courts used a decades-old “balancing” test to decide cases involving public employee speech. The test resulted from two U.S. Supreme Court decisions: Pickering v. Board of Ed. of Township High School Dist.,(1968)[ii] and Connick v. Myers (1983).[iii] These cases established that a public employee had to prove that his or her speech concerned a matter of public concern and not a personal grievance. The court would then balance the employee’s free speech interests against the employer’s interest in operating an orderly and efficient workplace.

In Pickering v. Board of Ed. of Township High School Dist., a teacher was terminated for sending a letter to a local newspaper criticizing the school board’s allocation of funds. The teacher sued, claiming that his termination violated his free speech rights under the First Amendment. The Court concluded that the school district could not terminate the teacher when he spoke as a citizen on matters of public concern.

In Connick v. Myers, the Court further defined the phrase “matters of public concern.” An assistant district attorney, Myers, complained to her supervisor about a job transfer and other office procedures. To elicit support, Myers circulated a questionnaire about office procedures, causing a disruption in the office. Myers was terminated for refusing to accept the transfer and for insubordination. Myers sued, claiming that the district attorney’s office violated her First Amendment rights. When the case reached the U.S. Supreme Court, Myers lost because the Court concluded that she did not speak as a citizen about matters of public concern, but as an employee about personal grievances.

Garcetti v. Ceballos (2006)

In Garcetti v. Ceballos, a criminal defense attorney asked deputy district attorney Ceballos to investigate aspects of an upcoming case. Ceballos discovered that the affidavit used for a search warrant seriously misrepresented facts. Ceballos reported his discovery to his supervisors, then followed up with a memo recommending dismissal of the case. After an acrimonious meeting, Ceballos’ supervisors proceeded with the case. Subsequently, Ceballos was reassigned to another position, transferred to another courthouse, and denied a promotion. Ceballos alleged that the District Attorney’s Office violated his First Amendment rights because he questioned the validity of an affidavit.

The U.S. Supreme Court ruled against Ceballos because his statements were made in accordance with his official duties:

When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

However, all speech within the workplace is not automatically restricted. Referring to Pickering, the Court repeated “the First Amendment protects some expressions related to the speaker’s job.” But the Court emphasized the government employer’s need to manage the workplace: “(e)mployers have heightened interests in controlling speech made by an employee in his or her professional capacity.”

The United States Court of Appeals, Seventh Circuit

The following Seventh Circuit cases demonstrate that government employers now have greater discretion in taking action against public employees who voice concerns about the workplace. Nevertheless, the Seventh Circuit has, on occasion, ruled for employees:

            Spiegla v. Hull,[iv] (Decided March 30, 2007)

Under Garcetti, the Seventh Circuit invalidated a jury award to a prison guard who made a First Amendment retaliation claim against her employer. Spiegla, a 15-year correctional officer, reported to her superiors a potential breach in prison security. In 2000 while at her main-gate post, Spiegla witnessed two officers transferring bags from their personal vehicles to a state-owned truck. When the officers drove to the gate, one officer dissuaded her from searching the truck, citing a new policy exempting state vehicles from inspection. Spiegla reluctantly allowed them to enter without a search. Spiegla noted the potential breach in policy and reported it to an assistant superintendent. Days later, Spiegla was reassigned to a less desirable job. Spiegla sued, claiming retaliation in violation of her First Amendment rights.

Spiegla won, and was awarded $210,000 in damages. But her trial occurred shortly before Garcetti. When the defendants appealed and the case came before the Seventh Circuit, Garcetti was controlling law. The court held that Spiegla’s communication to her superiors was pursuant to her official responsibilities and therefore not entitled to First Amendment protection.

The court acknowledged the new hurdle a public employee must clear in order to seek the protection of the First Amendment.

Prior to Garcetti, we considered the “content, form, and context” of the employee’s speech to determine whether the employee spoke as a citizen on a matter of public concern, with the content being the most important factor. . . After Garcetti, however, the threshold inquiry is whether the employee was speaking as a citizen; only then do we inquire into the content of the speech.

Interestingly, the court observed “that the record and the jury’s verdict substantiate that Spiegla was punished for simply following the rules.”

            Morales v. Jones[v] (Decided July 17, 2007)

In Morales, the Seventh Circuit overturned a jury award of $170,000 for Milwaukee police officers Alfonso Morales and David Kolatski, in their First Amendment claim. In 1998, a complaint to the police department led to the arrest of Vincent Ray, brother of Deputy Chief Monica Ray. Officers Morales and Kolatski arrested Mr. Ray. The officers later learned from an eyewitness that a man fitting Vincent Ray’s description was with Deputy Chief Ray at her home, along with Chief Jones. If the information were true, then Jones and Ray had harbored a felon. The officers informed the District Attorney’s Office who then investigated the claims, which turned out to be false.

Afterward, Jones demoted Kolatski to a night shift patrol. Morales was also demoted after he commented in a deposition that Kolatski’s transfer was related to the Vincent Ray case.

In 2000, Morales and Kolatski filed suit against their employer, claiming violation of their First Amendment rights. In 2005, the officers won their claim and were awarded $170,000 in damages. The employer appealed in light of Garcetti.

The Seventh Circuit held that under Garcetti, the officers’ communications with the D.A.’s office were pursuant to their duties and not protected by the First Amendment. But Morales’s deposition testimony was protected by the First Amendment: “(B)eing deposed in a civil suit pursuant to a subpoena was unquestionably not one of Morales’ job duties, because it was not part of what he was employed to do.”

            Fuerst v. Clarke[vi] (Decided July 27, 2007)

The Seventh Circuit ruled in favor of a Milwaukee County deputy sheriff against Sheriff Clarke. James Fuerst, as president of the union, gave his opinion to a local newspaper about Clarke’s proposal to replace a civil service position with a public relations officer answerable only to the Sheriff. Fuerst asserted that the proposal was a waste of taxpayer money and the position would serve only to promote Clarke’s political ambitions. After the newspaper report, Fuerst was denied a promotion despite his high rank on the eligibility list. Fuerst lost his lawsuit in district court, but the Seventh Circuit reversed and remanded. The Seventh Circuit explained that Fuerst’s public comments were made in his capacity as a union president rather than pursuant to his official duties as a deputy sheriff. The Appellate Court held that the district court misapplied Garcetti in this case because commenting on the Sheriff’s proposal was not part of Fuerst’s official duties.
Conclusion

The U.S. Supreme Court’s holding in Garcetti v. Ceballos appears to have increased the level of control government employers can exert over the speech of their employees. Whereas the courts used to focus first on the nature of the speech to determine whether it was a matter of public concern and then balance the employee’s free speech interests against the interest of the employer in maintaining an orderly work environment, the law now concentrates on whether the employee’s speech was made as a function of their official duties. If it was, the courts will provide that employee with much less free speech protection.

WPPA members should follow this issue as lower courts continue to apply the new rule established by the Supreme Court, and contact the WPPA with any questions.