Monday, September 29, 2008
Lawrence Rosenthal (Chapman) has posted on SSRN his article (Fordham) The Emerging First Amendment Law of Managerial Perogative. Here's an excerpt from the abstract:
In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because his expressions were made pursuant to his duties.... The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.
This article rejects the scholarly consensus on Garcetti. The critics' claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney's office to the public; therefore his speech could not have advanced the public's understanding and evaluation of the district attorney's performance. Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence. The Court's opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch.
I had the pleasure of seeing Lawrence present this paper at last year's LEL Scholars' Colloquium. It will come as no surprise to readers of this blog that Paul Secunda disagrees with Lawrence's thesis (see Garcetti's Impact on the First Amendment Speech Rights of Federal Employees). Lawrence is definitely swimming against the academic current -- but it's as yet unclear whether the academic current is merely an eddy, or a tide that will persuade the judiciary to take a different course.