Up until the 1960s, the judicial doctrines covering public employee speech were fairly deferential to employers. Public employee speech was given practically no constitutional protection from employer disciplinary action. As with their private sector counterparts, government employees had virtually no free speech rights they could assert against their employers.
The reasoning behind this rule was famously articulated by Oliver Wendell Holmes in McAuliffe v. Mayor of New Bedford, where the Supreme Judicial Court of Massachusetts upheld an ordinance prohibiting police officers from engaging in political fundraising. According to Holmes, a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. ” Consequently, a policeman, just like any other public employee, must take that employment “on the terms which are offered him. ” This judicial deference to the actions of government in its role as employer prevailed into the 1950s. A year after Garner, the Supreme Court, in Adler v.
Board of Education, upheld a similar law in New York that made any person who advocated overthrowing the government by violent or unlawful means ineligible for employment in public office, particularly in the public school system. In drawing the distinction between government as employer and government as sovereign, the Court stated that while public employees “have the right under our law to assemble, speak, think, and believe as they will,” they do not have the right “to work for the State in the school system on their own terms.
” But in the 1960s, the Holmesian model gave way to the Warren Court's heightened attention to individual rights. In a marked departure from past precedent, the Court began giving greater protections to the speech rights of public employees. Ushering in this new era of public employee speech protection was the Court's decision in Pickering v. Board of Education, which involved the termination of a public school teacher who had published a letter to the editor criticizing the Board of Education's handling of a proposed tax increase.
Ruling that public employees do not relinquish their First Amendment rights when they assume their government jobs, the Court created a new balancing test to determine whether public employee speech is constitutionally protected: “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
” Applying this test in Pickering, the Court found that since the letter obviously related to a matter of public concern and did not interfere with the operation or efficiency of the school, the Board of Education had no more right to curtail the teacher's speech than it would have to curtail the speech of any other citizen. Notwithstanding this holding, the Court recognized that the interests of the government “as an employer in regulating the speech of its employees . . .
differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. ” By blurring the line between government as sovereign and government as employer, the Pickering balancing test took a big step away from the Holmesian model of deference to governmental authority. Another step was taken fifteen years later when the Court further explained the “public concern” factor articulated in Pickering, adopting it as a threshold test to the Pickering balancing test.
In Connick v. Myers, a disgruntled district attorney was fired for insubordination after distributing to her colleagues a questionnaire dealing with a variety of workplace matters, including office morale and employee confidence in supervisors. To determine whether a First Amendment violation occurred, the Court undertook first to determine whether the speech in question, distributed through the questionnaire, involved a matter of public concern.
This was a threshold issue to be decided even before application of the Pickering balancing test. In Connick, the Court distinguished between matters of public concern and “matters only of personal interest,” such as employee grievances. As the Court stated, except for “the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision” involving employee grievances that have no public concern and which an employer should be free to handle as it sees fit.
The distinction between employees-speaking-as-employees and employees-speaking-as-citizens was crucial, since speech that did not touch upon matters of public concern was not eligible for the Pickering balancing test. As a citizen, a person can speak freely on just about any topic without restriction from her sovereign– the government–but as a public employee, a person can have her non-public concern workplace speech controlled by her government employer, just as a private-sector employee can have her speech controlled by her private employer.
B. The Court's Most Recent Pronouncement Although Connick took a somewhat narrow view regarding what kind of speech constituted a matter of public concern, essentially ruling that workplace grievances were not a topic of public concern, subsequent courts have tended to define “public concern” more broadly. But, not until its recent decision in Garcetti v. Ceballos did the Supreme Court address the constitutional status of a public employee's speech made in furtherance of employment duties.
Previous cases, as reflected by Pickering and Connick, focused on peripheral statements made by employees during work rather than on speech required to be made as part of the employee's official duties. In Garcetti, a deputy district attorney in the Los Angeles County District Attorney's Office was demoted after filing a disposition memorandum outlining alleged false statements contained in an affidavit used to obtain a critical search warrant and informing defense counsel of those false statements.
The demoted deputy district attorney then commenced a suit alleging that his demotion had been in retaliation for speech protected by the First Amendment. In denying this claim, the Court held that the First Amendment did not apply because the deputy district attorney spoke as an employee and not as a citizen when he wrote his critical memorandum.