Thursday, April 7, 2011

Do Public Employees Have the Right to Free Speech?

Nichole Fray

The First Amendment grants all U.S. citizens the right to free speech. However, there are different exceptions and stipulations that are attached to this right. What type of speech is protected or unprotected? Are all citizens protected under the First Amendment umbrella at all times? This piece will examine free speech and how it applies and may not apply to public employees. As defined by, a public employee is, “a person who is employed by a government agency and included the employees of a municipal, county, state, or federal agency or state college or university.” Cases to be examined that pertain to this issue are Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court decision in Pickering v. Board of Education, 391 U.S. 563 (1968) and a more recent case Fulmer v. Commonwealth of Pennsylvania, 618 MAL (2010). The Pickering case is precedent for many pro-employee cases that followed it. However, the Garcetti decision is interpreted as precedent for cases being decided the other way, i.e. not in favor of the employee; (Fulmer vs. Commonwealth of Pennsylvania.) In addition to those cases I will refer to a First Amendment Center publication entitled Balancing Act: Public Employees and Free Speech, by research attorney and first amendment scholar at the center David Hudson, as well as other legal and news articles on the cases.

The free speech that is afforded a regular citizen may or may not apply once that citizen enters the public workplace. Hudson states in his publication, “…..the U.S. Supreme Court has carved out an exception to its First Amendment jurisprudence for public employees. Basic free-speech rules that apply outside the workplace sometimes have little relevance for public employees.” This statement was held to be true in the Garcetti Case. In a New York Times article on the case, the author David Stout writes, “In a 5-to-4 decision, the court held that public employees' free-speech rights are protected when they speak out as citizens on matters of public concern, but not when they speak out in the course of their official duties.” The underlying question that arises in cases when first amendment claims are made by public employees is whether, “the employees words are protected political speech or an unprotected act of insubordination.” (Hudson, 4)

In Garcetti vs. Ceballos, Los Angeles deputy prosecutor, Richard Ceballos filed a complaint with his superiors pertaining to an issue he had with the falsity that was reported in a search warrant affidavit. He wrote a memorandum criticizing his office’s failure to dismiss the case. Ceballos claims retaliation for his memo included reassignment and promotion denial. He brought his case all the way to the Supreme Court where he lost. Justice Anthony Kennedy wrote for the majority, “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,”(COMMENTARY: Public-Employee Speech and the Garcetti Effect)

In the First Amendment Center publication David Hudson points out there is an obvious shift in the way historic public employee speech case law was decided and the way modern public employee speech law is decided. In Pickering vs. Board of Education, high school science teacher, Marvin Pickering, wrote a letter to the editor of the local newspaper complaining about the way the school board funded athletics; he was fired. In his letter he claimed the money being poured into sports was occurring at the expense of the wants and needs of teachers. The school board argued that Pickering’s letter was detrimental to the efficiency of school operations and administration. The Supreme Court ruled in an 8-1 decision that the Board of Education had violated Pickering’s First Amendment rights. Hudson states, “The Court first noted that Pickering’s letter referred to important matters of public concern in the community and then pointed out that Pickering should not lose the rights he possessed as a citizen simply because he worked as a public school teacher.” (11)

As a result of this case as well as Connick v. Myers, 461 U.S. 138 (1983) a similar public employee case, a two part test was created that courts would use for years to apply to cases like these; the test was called the Pickering-Connick test. The first part of the test was to discover if the employee spoke on a matter of public concern or importance. If the employee’s speech did not speak on these matters but instead was a personal complaint then the employee would lose the case. If the employee’s speech was a matter of public concern or importance, the court would have to balance the free speech rights of the employee against the public employer’s interest in ensuring an efficient workplace. (COMMENTARY: Public-Employee Speech and the Garcetti Effect)

The Garcetti case eliminated the question of whether the information stated in the employee’s speech was important or not. Now, if that information can be placed into the category of being official, job-duty speech then there is no first amendment protection for the employee. David Hudson writes in another one of his articles from the First Amendment Center, 2nd Circuit rejects whistleblowing custodian's appeal, “Under Garcetti, public employees have no First Amendment protection — even for whistleblowing — when they make statements as part of their official job duties.”

The Garcetti case recently served as precedent in getting an employee’s first amendment rights claim dismissed, in Fulmer v. Commonwealth of Pennsylvania. The dismissal was based on the Supreme Court’s decision that employees have no First Amendment rights when it pertains to job-duty speech. James Fulmer is currently a retired Pennsylvania state police officer who claims due to his complaints on the job about alleged corruption by other officers that he was denoted. His speech was classified as job-duty speech so he had no case. In Another Police Officer squelched by Garcetti, David Hudson writes, “On March 16, 2011, U.S. District Judge David Stewart Cercone granted the defendants summary judgment in Fulmer v. Commonwealth of Pennsylvania. “The developed record demonstrates that plaintiff [Fulmer] only spoke pursuant to his official duties,” Cercone wrote.”

To answer the question, do public employees have the right to free speech; the easy answer is essentially now. These cases confirm the theory that once a regular citizen becomes a public employee; he or she has unofficially given up some of his or her first amendment freedom. As previously mentioned all American citizens are afforded the rights laid out in the U.S. Constitution, but there are exceptions and stipulations that are attached to those rights just as there are to any rule.



  1. So what happens when a public employee speaks out that is a)job related AND b)regarding a public issue. Isn't corruption among members of the state police an 'issue of public interest?' Should not a public employee have a duty to the taxpayers who pay his salary? I think the courts are flat out wrong!

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