Job-related speech not protected by First Amendment

U.S. Supreme Court decision delivers a blow to free speech rights of public employees but sidesteps academic freedom issues for now

A divided Supreme Court ruled in a 5-4 decision on May 30 in the case of Garcetti v. Ceballos that the First Amendment does not protect public employees from disciplinary action for job-related speech.

However, the Court sidestepped for now the question of whether or not its decision in Garcetti would apply in the same manner to a case involving academic freedom.

The plaintiff in the case is a deputy district attorney from Los Angeles named Ceballos who claims that he was punished for writing an internal memo to his superiors disclosing that a deputy sheriff had lied in a sworn affidavit used to obtain a search warrant. Both parties agree that the subject matter of the memo—police malfeasance—is a matter of public concern, but the government employer (supported by the Bush administration) argued that Cabellos' speech is entitled to no First Amendment protection because he was speaking in his role as an employee, and thus it was constitutionally permissible to punish him for such speech.

By way of background, the Supreme Court first ruled in the Pickering case (1968) that public employers, including school districts and colleges and universities, cannot punish their employees for engaging in protected free speech activities under the First Amendment. In a 1983 decision known as Connick, however, the Court limited its holding in Pickering by ruling that a public employee's speech is entitled to constitutional protection only if the employee is speaking as a citizen on a matter of public concern, and is not entitled to constitutional protection if the employee is speaking as an employee on a matter of personal or private concern. Speech touches on a matter of "public concern" if it is of general interest to the public, but it does not if it concerns merely internal matters such as employee gripes or "office politics" and the like. If the employee's speech is not protected under the Connick rule, then it can be the basis for discipline or discharge without violating the First Amendment.

Writing the majority opinion in the case, Justice Anthony Kennedy wrote, "We hold 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." Kennedy's opinion was joined by Chief Justice John G. Roberts Jr. and Justices Samuel Alito Jr., Antonin Scalia and Clarence Thomas.

In a dissenting opinion, Justice David Souter observed that the majority opinion was broad enough "to include even the teachings of a public university professor" and expressed the hope that "today's majority does 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.'" Souter cited a number of cases in which the courts have afforded special safeguards to academic freedom.

Responding to Souter's concerns that the decision may have important ramifications for academic freedom, Justice Kennedy wrote, "We need not, and for that reason, do not, decide whether the analysis we conducted today would apply in the same manner to a case involving speech related to scholarship or teaching."

Legal scholars and experts on academic freedom disagree to some extent on the import of the exchange between Kennedy and Souter. While some thought it a good sign that Justice Kennedy's comments recognize that special concerns apply in academic circumstances others found little in the decision to support a public university's professor's desire to speak out.

The decision, indeed, could have some odd ramifications when applied to higher education employees. In order to frame what he or she says as an issue of public concern, a professor may now have a heightened inducement to speak out publicly on an issue rather than merely to write a memo to the dean or provost about it. Where a public utterance may be protected as an exercise of the professor's First Amendment rights, a written memo to a supervisor may not.

The decision also implies that the greater a public employee's expertise is in an area related specifically to his or her job duties, the lesser his or her free speech rights will be. Thus, a professor who know little about a subject because it is not related to his or her job duties may have considerable freedom in speaking out an the subject, whereas a colleague who knows a great deal about the subject may not. For example, the speech of a history professor who testifies in front of the board of regents about its plans to bulldoze a pristine rangeland in order to build a golf course may be protected, but the speech of a professor of environmental science whose job duties for the university included assessing the impact of the golf course on the rangeland may not be.

TFA Executive Director Dr. Charles Zucker said, "The uncertainty surrounding this decision as it applies to higher education makes it imperative that faculty and staff join TFA in order to obtain the protection afforded by the Association with regard to employment-related matters."

TFA will continue to monitor and to report on the Garcetti decision as its ramifications unfold.

Note: Some of the information above is based on an Inside Higher Ed article, "Justices Punt on Academic Freedom," May 31, 2006.

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