Friday, October 31, 2008
This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.
In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." The Court thus created a bright-line rule that essentially defines public employees' speech delivered pursuant to their official duties as the government's own speech for which it paid with a salary - i.e., speech that the government may control free from First Amendment scrutiny regardless of the strength of the public's interest in it or its impact, if any, on the government's efficiency.
But in suggesting that any speech pursuant to a public employee's official duties constitutes government speech, the Court ignored the fact that government speech merits insulation from First Amendment scrutiny only because of its instrumental value in enabling the public to identify and evaluate its government's priorities - and to hold the government politically accountable for those choices. Indeed, the government's political accountability to the electorate for its effectiveness is undercut by the carte blanche Garcetti now gives government to discipline workers who truthfully report irregularities and improprieties pursuant to their official duties. Rather than identifying a theoretically principled approach for capturing the value of empowering government to control its own speech, the Garcetti Court instead formalistically imposed a bright-line rule to avoid the often challenging but entirely commonplace task of balancing constitutional interests.
Download the paper from SSRN here.