Wednesday, July 18, 2007
Let the public employee free speech carnage begin. One would think that when a police officer that reports to an assistant district attorney that his police chief is harboring a felon, and is reassigned to street patrol for his trouble, that he would be considered to have engaged in speech on a matter of public concern and potentially protected under the First Amendment.
Not under the madness which is Garcetti. Under the formalist framework set up in Garcetti, you either speak as a citizen or employee and nothing in between. You just can't be both even though most people in reality act as both citizens and employees in the workplace.
The 7th Circuit in Morales v. Jones, 06-1643 (7th Cir. Jul. 17, 2007) reversed a jury verdict in favor of the police officer and found that this type of speech to the ADA was pursuant to the police officer's official duties and therefore, not protected by the First Amendment. But here's the kicker, the same speech the police officer made in response to a subpoena in a civil suit was not pursuant to his official duties. Therefore, the 7th Circuit remanded the case for a new trial so that a jury could be properly instructed about the protected and unprotected aspects of the same speech! Kafka here we come.
The dissent makes the obvious point that the police officer was not required to report the chief's conduct to the ADA so none of his speech should be considered as pursuant to official duties. The bigger point, however, is that the Supreme Court has completely eviscerated public employee free speech protection by not recognizing that even some speech which is part of a person's job duties may be spoken in the employee's capacity as a citizen to warn the public on matters of community concern, like when your boss is committing a serious crime!
For a wonderful take on the absurd results occasioned by Garcetti's formalism, check out this paper just posted on SSRN, and published in the William & Mary Bill of Rights Journal, by Charles "Rocky" Rhodes (South Texas) entitled: Public Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism.
Hat Tip: Ross Runkel