Under this rule, when public employees speak as part of their employment duties, they do not speak as citizens and hence are not accorded constitutional protection from their employers' disciplinary actions. Recognizing that the “government as employer indeed has far broader powers than does the government as sovereign,” the Court stated that the First Amendment “does not empower [public employees] to ‘constitutionalize the employee grievance[s].
”’ To accord constitutional protection to the speech in the case at hand, according to the Garcetti Court, would be to undermine employer authority and force the judiciary into “a new, permanent, and intrusive role. ” The issue in Garcetti was not whether the particular speech involved a matter of public concern (which it clearly did), but whether the speech was made by a government employee in furtherance of his official duties. For this reason, the Court took a different approach than had been taken in Connick.
Since the deputy district attorney in Garcetti investigated the affidavit and wrote his memorandum as part of his assigned employment duties, he acted as a government employee rather than as a citizen; consequently, his supervisors had every right to criticize his performance and take disciplinary action. Thus, if a public employee speaks not as a citizen but as an employee of the government, the Connick public concern test and the Pickering balancing test are not even reached. The Garcetti Court more or less adopted a per se rule that built upon the phrase “as a citizen” in the public concern test as articulated in Connick.
The rule makes a fundamental distinction based on the relation of the individual speaker to the government. If the relationship is one of citizen to sovereign, the First Amendment governs. But, if the relationship is one of employee to employer, no constitutional protection comes into play. Public employees speaking “pursuant to [their] official duties” do not speak “as citizens for First Amendment purposes,” regardless of whether their speech might touch upon matters of public concern.
The crucial distinction made in Garcetti was one of whether the individual was acting as a citizen or as a government employee. First Amendment rights attach only to those public employees who are acting as citizens. Thus, it is the role of the person asserting the right that is determinative. When a person is speaking not as a citizen but as a government employee, that person is not entitled to the protections of the First Amendment, which serves to protect citizens from an overreaching sovereign.
The First Amendment does not encompass a special protection for government employees, which incidentally constituted a minute fraction of the U. S. population in the late eighteenth century. Likewise, the Due Process Clause should protect the property that individuals acquire as citizens, but not the job expectations they acquire as government employees. For this reason, the decision in Garcetti should have a spillover effect on the due process public employment cases, since the same employee-citizen distinction exists in those cases as in the public employee speech cases.
Constitutional rights should only reside in the most basic level in society, the common denominator level which all individuals share. Constitutional rights should relate to the citizen-sovereign relationship because that is the relationship that every individual possesses and shares with one another. Constitutional rights cannot reside in a relationship possessed by only a few members of society like the government employer-government employee relationship. As the public employee speech cases reveal, the distinction between employee and citizen carries vitalconstitutional relevance.
Indeed, as Garcetti suggests, the test for constitutional protection of public employee speech is a “but for” test: But for the employment relationship, would the government be able to restrict the speech at issue? In Garcetti, the deputy district attorney learned of the facts about which he spoke not because he was a citizen, but because he was a government employee. Thus, his speech was possible only because he was a government employee charged with performing certain duties.
Garcetti also marks a certain retrenchment from the Pickering-Connick line of cases; it places primary importance on the citizen-employee distinction for purposes of designating constitutional rights. Garcetti treats the citizen-employee distinction as more controlling than the kind of speech uttered. Similarly, the type of government job or the expectations surrounding it should not be as important in determining constitutional due process rights as the citizen-employee distinction.
Government employment is a creation of the legislative process, and hence should be governed by that process. As suggested in Garcetti, if there is value in having government employees speak out openly and without restraint about the workings of their government offices, then laws can be passed to grant that freedom and protection to public employees. The efficient, responsive, and non-corrupt working of the government is a citizen concern, a democratic process concern.
If the democratic community wishes to receive critical or exposing speech from government employees, despite its effect on the efficient operation of government offices, then the legislature can pass laws to ensure and protect such speech. This interest corresponds to what Vincent Blasi once called “the checking value” of free speech, or the ability of speech, particularly by government insiders, to expose instances of government waste and corruption. But, this value can just as easily be protected by whistleblower statutes.
If the democratic community needs or desires free and open “whistleblower” speech, it can enact the appropriate laws as it has done so on numerous occasions. This same logic applies to the protection of public employee job rights and expectations. If a democratic community wishes to provide these protections, it can enact the necessary civil service laws. Indeed, just as whistleblower laws have been enacted to protect certain types of public employee speech, various civil service laws have been enacted to provide the same kind of protection to public employees that a democratic community wishes to provide.
If society is concerned about oppressive governmental employment practices, just as if society is concerned about public employees exposing governmental waste or corruption, then it can address the problems through the legislative process. Moreover, if government agencies are oppressively silencing watchdog speech, and if government supervisors are unfairly firing employees, then the legislature can pass laws that require change. But aside from such laws, the government should be free to decide the rules for its own employment arena.