See something, say something? Not when the boss is Uncle Sam

As Americans we have a right to freely express our opinion, the government can not interfere with our right to do so, and must protect our rights if they are expressed within the framework of The First Amendment.

When we see something, we are encouraged to say something, and this “something” often has to do with how we see our government. Our opinions about government spending, government policies, and government decision, are all matter for debate and protected speech.

As a New Yorker, you can argue against the city’s Stop and Frisk activities, as an American you can argue against military actions against Syria. But what if you work for law enforcement or the Dept. of State? The Supreme Court has determined that as a public employees, our ability to speak on matters of public concern is limited and is only protected if the importance of our speech outweighs the interests of our employer.

How did the court arrive at the decision?

Until recently, the guiding principle that the Supreme Court ruled by was the two-part test established in 1968 in Pickering v. Board of Education.

While Pickering is also considered a major ruling supporting academic freedom, it has established case law with regard to public employees.

in Pickering v. Board of Education, a strong Court majority (8 to 1) ruled in favor of a Pickering, a high-school teacher who was fired for publishing a letter critical of the school administration in a local newspaper.

In Pickering, the Court established a two part test for balancing public employees free speech rights, with rights of a public employer.

The Court ruled that faculty speech is protected if their speech addressed “matters of public interest in connection with the operation of the institutions in which they work” and if their interest in speaking out outweighs the employers interest in promoting public service.

The Pickering test guided to court in the upcoming years.

In 1983 in Connick v. Myers a divided court ruled in a 5 to 4 decision that Myers did not meet the balancing test established in Pickering,  and that Myers rights were not violated when, as former assistant district attorney she was dismissed for distributing a questionnaire criticizing workplace practices. The Court said that Myers “damaged the harmonious relations necessary for the efficient operation of the district attorney’s office”

Forty years later, in 2006 Pickering was overruled by the Supreme Court by Garcetti v. Ceballos. In Garcetti. Ceballos was not a professor and he did not work for a university, instead, he was district attorney working for the city of Los Angeles.

Ceballos wrote an internal memo critical of a decision of a superior to prosecute a criminal. Soon after, Ceballos was reassigned to another case and denied promotion. Ceballos filed suit, claiming his reassignment the denial of promotion, were retaliation against his memo.

In Garcetti, the Court ruled First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties. Ceballos claim that he was denied promotion as retaliation for his speech was denied.

The Court said 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 their communication from employer discipline.”

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