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 them from discipline.
– Justice Anthony Kennedy in Garcetti v. Ceballos.
The American people are the only ones who lose if government employees are silenced, because only a corrupt government gains from that, and the five Justices who took an oath to protect the Constitution of the United States for the citizens of the country were the ones who were now violating their oath.
– Michale Callahan.
The United States Supreme Court has had its share of shameful rulings. The great Erwin Chemerinsky wrote that we should “appreciate the powerful case against the Supreme Court for the choices it has made throughout history.” Another scholar wrote that the “list is so long, so infamous, and so disturbingly regular—recurring consistently over time—that one must seriously question whether the Supreme Court has been, on balance, a positive or negative force in our nation’s constitutional history.”
Many of these horrible rulings are well known. For example, the Court permitted slavery with its wretched decision in Dred Scott v. Sandford, legalized segregation in Plessy v. Ferguson, and supported the internment of 110,000 Japanese-American citizens in Korematsu v. United States. These three decisions reek of abject racism and have been condemned in the annals of history.
However, another decision of a more recent vintage deserves its rightful place in the Court’s hall of shame: Garcetti v. Ceballos. In Garcetti, the Courtissued a decision that serves as a Dred Scott-type ruling for public employees, diminishing their free speech rights to an unacceptable level. The Court created a categorical rule that public employees have no free speech rights when engaged in official, job-related speech.
Under Garcetti, it does not matter how valuable an employee’s speech is, how much corruption that speech exposes, or whether the speech informs the public regarding an important issue. Instead, the five-justice majority focused solely on creating a bright-line rule eviscerating the free speech rights of employees. The decision led to a “sea change in public employee First Amendment jurisprudence.” It also led to a terrible phenomenon of eponymous infamy, as plaintiff’s attorneys commonly refer to their public employee clients who have been “Garcettized.” Today, the Garcetti decision continues to wreak havoc on countless public employees across the country.
Part II of this essay briefly discusses the pre-Garcetti landscape of public-employee-related First Amendment jurisprudence, with a focus on the Court’s, now defunct, balancing test for addressing such complaints, followed by a discussion of Garcetti and its multiple dissents. Part III addresses several lower court decisions illustrating how Garcetti has led to unfair results and unnecessarily diminished the free speech rights of police officers, firefighters, public school teachers, and other public employees. Finally, part IV discusses two slight retreats from the broad categorical rule created in Garcetti. These retrenchments are important, but better still would be the abrogation of Garcetti itself.