A Huge Loss for the Public’s Right to Know – And Its Safety

By Helen Norton
Associate Professor of Law, University of Colorado School of Law

Imagine a United States in which the Constitution permitted the government to fire or otherwise punish its employees just for telling the truth about dangerous or illegal conditions. How safe would you feel? Yet the Supreme Court’s 2006 decision in Garcetti v. Ceballos empowers the government to do just that. 

Garcetti involved a First Amendment challenge by a prosecutor who was disciplined after writing an internal memo that criticized a police search warrant as seriously inaccurate. The Supreme Court rejected his claim by a 5-4 vote, holding that the First Amendment simply does not apply to public employees’ speech made “pursuant to their official duties.”

Concluding that government agencies should be free to exercise “employer control over what the employer itself has commissioned or created,” the Court treated government workers’ expression as the government’s own speech, which it paid for with a salary — in other words, it was speech that the government may control free from First Amendment scrutiny.

Lower courts now routinely apply Garcetti to dispose of the First Amendment claims of police officers, teachers, health care workers and other public employees punished for their accurate on-the-job reports of safety hazards, ethical improprieties and illegal behavior. These include claims by police officers terminated for reporting public officials’ misconduct, a wide variety of public employees discharged for detailing health and safety violations, health care providers disciplined for conveying concerns about patient care, educators punished for describing concerns about student treatment, and financial managers fired for reporting fiscal irregularities. 

Among the many examples is the Ninth Circuit Court of Appeals’ recent conclusion in Huppert v. City of Pittsburg that the First Amendment does not prevent a police department from retaliating against an officer for providing truthful grand jury testimony about possible police corruption because his job requires such testimony. 

The Seventh Circuit similarly applied Garcetti in Morales v. Jones to find that the First Amendment did not protect a police officer’s internal report that his supervisor was engaged in unlawful activity because the officer’s duties required him to report such possible wrongdoing. As one of the judges explained, “[The officer] was performing his job admirably at the time of these events, and although his demotion for truthfully reporting allegations of misconduct may be morally repugnant, after Garcetti it does not offend the First Amendment.”
Public employees disciplined for making internal reports of health and safety violations to the displeasure of their supervisors now meet a similar fate. The Third Circuit, for example, applied Garcetti in Foraker v. Chaffinch to conclude that the First Amendment posed no barrier to the punishment of state troopers and firearms instructors who made internal reports of health and safety hazards at a government shooting range because such reports were made pursuant to their official duty to flag operational problems. The Eleventh Circuit applied Garcetti in Battle v. Board of Regents to conclude that the First Amendment offered no protection to a university financial aid manager terminated after reporting possible fraud because her duties required her to report any irregularities.

As counterintuitive and perverse as these decisions may seem, they are now commonplace after Garcetti.

To be sure, we should understand that the First Amendment permits government to claim and control the speech of those public employees that it has specifically hired to deliver its own particular viewpoint. This is the case, for example, when a health department hires an employee to implement an anti-smoking campaign, when a governor hires a press secretary to explain her position on pending legislation, or a mayor commissions a muralist specifically to create patriotic art. The First Amendment should permit government to protect its own viewpoint from being garbled or misrepresented. 

This approach, however, describes a much smaller slice of public employee speech than does the test established by the Supreme Court in Garcetti. As dissenting Justice David H. Souter observed, the prosecutor’s office in Garcetti hired Mr. Ceballos not to convey a specific government message that the police department is infallible, but instead to provide sound legal analysis and competent prosecution. Yet the Court required no evidence that the government had received anything from Mr. Ceballos other than the proficient legal work and judgment for which it paid him a salary — in other words, it held that the First Amendment did not apply to his speech no matter how accurate or important it might be to the public.

Lower courts now routinely apply Garcetti to dispose of public employees’ First Amendment claims at great cost to the public’s understanding of its government.

In the past, courts recognized the potential value of government workers’ speech by prohibiting government from punishing its employees for their expression on matters of public interest unless the speech unreasonably interfered with the government’s effective functioning — for example, if the employee’s expression was factually inaccurate or sufficiently rude to disrupt the workplace.

Now, however, thanks to Garcetti, government employers may punish their employees’ speech with constitutional impunity so long as the workers’ job duties required them to speak on such matters. The Supreme Court’s decision in Garcetti imperils not only the free speech rights of more than twenty million federal, state, and local government workers, but also the public’s deep interest in transparent government.