Public Employees and Free Speech

by Richard Whitmore and David Urban

When a public employee speaks up, does the First Amendment provide protection? The answer is: It depends.

Consider the case of a determined deputy district attorney - let's call him Frank Fearless - who sends his boss a memo questioning the accuracy of a police officer's affidavit supporting a search warrant. The memo warns that evidence seized under the warrant may be inadmissible in an upcoming prosecution.

Fearless's superiors review the memo and conclude that he is wrong. So the prosecution proceeds and - surprise! - the defense makes a motion to suppress. At the hearing, Fearless ends up as a witness for the defense, testifying that his own office has acted improperly. Still, the judge rules that the affidavit and search warrant are valid. The incriminating evidence will be admitted at trial.

After the hearing, Frank Fearless is reassigned to another position and denied a promotion. He files suit, contending that his superiors retaliated against him because of his memo protesting the search warrant; he claims that the First Amendment protects his speech.

The facts of this case are not a hypothetical. They recount the real-life scenario of Richard Ceballos, a Los Angeles deputy DA whose case went all the way to the U.S. Supreme Court. It established a standard for determining what protection, if any, the First Amendment affords to public employees who engage in various types of speech (Garcetti v. Ceballos, 547 U.S. 410 (2006)).

The Garcetti ruling distinguished between "private citizen" speech, which is protected by the First Amendment, and "public employee" speech, which is not. The Court found that Ceballos had engaged in unprotected employee speech.

The analytical framework articulated in Garcetti has also been applied to state court cases arising under the California constitution. (See Kaye v. Board of Trustees of San Diego Public Library, 179 Cal. App. 4th 48, 58?59 (2009).) Yet even though the Garcetti formula sounds simple, it has been difficult for courts to apply, as a survey of federal cases attests.

Official Duties
In Garcetti, the Court had to balance a government agency's interest in carrying out its operations against the free speech rights that public employees enjoy as citizens. Applying these considerations, the Court enunciated an "official duties" test: "We hold 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 communications from employer discipline." (Garcetti, 547 U.S. at 421 (emphasis added).)

The Court concluded that Ceball-os's memorandum detailing flaws in the search warrant was not protected speech, reasoning that "Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do...." The Court said that restricting speech that "owes its existence" to a public employee's job responsibilities infringes no liberties that the employee enjoys as a private citizen (Garcetti, 547 U.S. at 421?422.)

The Garcetti decision did not definitively determine what constitutes speech pursuant to "official duties." Rather, the Court left that to future cases, which have been appearing swiftly in various federal circuits.

Job Description
Under the Garcetti test, the scope of an employee's job duties is key. Not surprisingly, the Seventh Circuit Court of Appeals relied on a county employer's "general orders" to discern an employee's official duties. The plaintiff, a female social worker for the corrections department in Cook County, Illinois, was injured when a male corrections officer punched her. She filed an internal complaint as well as a separate police report. When she was later disciplined, she sued, claiming that the sheriff had retaliated against her for speaking up about her mistreatment (Houskins v. Sheahan, 549 F.3d 480, 484?485 (7th Cir. 2009)).

The Seventh Circuit rejected the social worker's free speech claim because the internal report had been mandated by her job. The court explained: "[Plaintiff] was clearly expected to report the incident under the General Orders, and therefore she was speaking as part of her job ... and not as a citizen." (Houskins, 549 F.3d at 491.) The appellate panel also found that the police report did not qualify as protected speech, but for a different reason: It did not concern an issue of public interest. "Speech that serves a private or personal interest, as opposed to a public one, does not satisfy the standards for First Amendment protections." (Houskins, 549 F.3d at 491?492.)

The Tenth Circuit went a step further when it heard the claim of an Oklahoma City building inspector who complained to his superiors about possible fraudulent building certificates, including one issued to the mayor. The inspector made a report to the Oklahoma State Bureau of Investigation. After the city terminated the inspector, he brought a retaliation suit. The court opined that the plaintiff's official job description "is not the end of the matter," and that a practical evaluation required analysis of the plaintiff's actual work and responsibilities (Thomas v. City of Blanchard, 548 F.3d 1317, 1323?1324 (10th Cir. 2008)). The court concluded that although discovery of alleged wrongdoing was part of the plaintiff's job duties, reporting that conduct to the state was not; the employee's speech, therefore, enjoyed constitutional protection (Thomas, 548 F.3d at 1326).

Following Orders
The Ninth Circuit has held that activities ordered by a superior fall within an employee's job duties, so ruling in a case involving Bay Area police officers who were ordered to investigate corruption at a municipal golf course (Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009)). But there was a complication: One of the officers - Ron Huppert - went even further, working off-duty with the FBI on corruption and fraud issues in the police department itself.

To the extent that the plaintiff officers were ordered to investigate, the court's conclusion that they performed official job duties and engaged in employee speech seems straightforward. But what about working with the FBI? The court's reliance on supervisory orders to categorize activities as employee speech would not seem to cover off-duty work with federal agents. Nevertheless, the court concluded that such activities were within Huppert's job responsibilities, and so speech in that context was not protected (Huppert, 574 F.3d at 706?708).

As such, the Ninth Circuit described California law as imposing broad duties on police officers to report any wrongdoing and to provide testimony that assists in the prosecution of criminal activity. The court said that when officers learn facts that tend to incriminate someone, they must disclose those facts to their superiors (Huppert, 574 F.3d at 707). This inherent duty on the part of police officers made Huppert's cooperation with the FBI part of his job duties. The court also determined that his grand jury testimony was part of his job duties as well (Huppert, 574 F.3d at 706?708).

The Huppert decision contains a dissent by Circuit Judge William Fletcher, who advocated in favor of a rule embraced by the Third and Seventh circuits - that an independent legal duty to speak, like the duty to provide truthful grand jury testimony, is sufficient to clothe speech with First Amendment protection. Fletcher's dissent notes that there is a clear split among the circuits on this issue (Huppert, 574 F.3d at 721?722 (Fletcher, J., dissenting)). It may take another U.S. Supreme Court decision to resolve this ongoing conflict.

Chain of Command
In Garcetti the U.S. Supreme Court advised that a public employee who only "expressed his views inside his office, rather than publicly" is not necessarily deprived of First Amendment protection (547 U.S. at 420). However, many lower courts have concluded that internal reporting decisively shows that a speaker is acting as an employee instead of speaking out as a private citizen. For example, in Foraker v. Chaffinch (501 F.3d 231 (3d Cir. 2007)) state troopers reported to their supervisors that numerous problems existed at a practice firing range, including malfunctioning equipment. The Third Circuit held that the state troopers had not engaged in protected citizen speech. The court observed that the controlling fact was that they "were expected, pursuant to their job duties, to report problems concerning the operations at the range up the chain of command." (Foraker, 501 F.3d at 241.) The Seventh Circuit recently decided another firing-range case using similar reasoning. (See Bivens v. Trent, 591 F.3d 555, 560 (7th Cir. 2010).)

But courts still must ponder whether an employee who "jumps" the chain of command - for example, a low-level public worker who bypasses superiors and submits a complaint directly to the top tier of management - is speaking as an employee or as a private citizen. This very question recently caused the Ninth Circuit to reverse summary judgment for an employer; the issue of the employee's official duties, the court said, was a disputed question of fact that did not lend itself to summary adjudication (Anthoine v. North Central Counties Consortium, 605 F.3d 740 (9th Cir. 2010)).

Elected Officials, Outside Agencies
By contrast, speaking outside the chain of command to elected officials, or to an agency independent of the employer, tends to bring speech outside the scope of official duties. A primary example is a Ninth Circuit case involving a corrections officer who filed reports documenting sexual harassment by prisoners at California's Pelican Bay State Prison, and then complained about inaction on the part of her superiors. She wrote letters to the California Inspector General and to a California state senator. The Ninth Circuit found these communications to be protected. The court's reasoning was strident: The officer's right to correspond with an elected public official and with an independent state agency is one "guaranteed to any citizen in a democratic society," and it was "certainly not part of her official tasks to complain to the Senator or the [Inspector General]." Instead, it was the officer's "responsibility as a citizen to expose ... official malfeasance to broader scrutiny." (Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2007) (emphasis by the court).)

Talking to the Media
Typically, courts have found that an employee's speech to newspapers and other media is outside of the worker's official duties. As in the foregoing cases, the inquiry will be fact-specific; but such speech would rarely be mandated by job duties. Rightly or not, courts tend to see the involvement of the media in these cases as heightening First Amendment concerns. The Supreme Court in Garcetti referred to "writing a letter to a local newspaper" as an example of protected speech (Garcetti, 547 U.S. at 423; see also Andrew v. Clark, 561 F.3d 261, 268 (4th Cir. 2009) (describing that police commander's providing the Baltimore Sun with a copy of his internal report critical of the department's shooting of a suspect could constitute protected citizen speech)). Indeed, the seminal case that spawned much of the "employee free speech" debate itself involved a public schoolteacher who penned a letter to a newspaper editor that was critical of the local school board. The Supreme Court ruled that the teacher's speech was entitled to First Amendment protection (Pickering v. Board of Education, 391 U.S. 563 (1968)).

Writing a signed op-ed piece or a letter to the editor is one thing. But leaking information to the press is something altogether different; in fact, such conduct can - and does - get employees fired. Courts have noted that government employers have sufficiently strong reasons for prohibiting and punishing unauthorized disclosures. Indeed, the Eleventh Circuit backed a veterinary board that sanctioned a clerk who leaked her fiscal concerns over the board's investigation of Oklahoma dog-fighting rings. The court found that the veterinary board could take action because of the danger that an unauthorized revelation would compromise an ongoing investigation (Dixon v. Kirkpatrick, 553 F.3d 1294, 1309 (10th Cir. 2009)).

The Employee's Goals
The Second Circuit recently set forth yet another approach to determining whether public employee speech is protected. The majority opinion in Weintraub v. Board of Educ. of City School Dist. of City of New York (593 F.3d 196 (2d Cir. 2010)) formulated a definition of "official duties" that appears to encompass basically anything an employee does to advance his or her job goals. The plaintiff, David Weintraub, was an elementary school instructor who had filed a grievance about the school's failure to discipline a student who on two occasions threw books at him. The instructor was later terminated, and he alleged retaliation for having asserted a grievance, which he argued was protected speech (Weintraub, 593 F.3d at 198?199).

But the Second Circuit held that the Garcetti decision precluded free speech protection. It reasoned that even though the instructor's decision to institute a grievance was entirely voluntary, the speech was pursuant to official duties because it advanced Weintraub's occupational goal of maintaining classroom discipline. The court, claiming to follow the Fifth and Seventh circuits, concluded that Weintraub's grievance was pursuant to his official duties because it was "part-and-parcel of his concerns" about his ability to "properly execute his duties" as a public school teacher - namely, to maintain classroom discipline." (Weintraub, 593 F.3d at 203.)

The dissent in Weintraub advanced an alternative test: "An employee's speech is 'pursuant to official duties' when the employee is required to make such speech in the course of fulfilling his job duties." (Weintraub, 593 F.3d at 208 (Calabresi, J., dissenting) (emphasis added).)

What's Next?
In Garcetti, the Supreme Court held that the First Amendment protects public employees who engage in "private citizen" speech, but not necessarily if they speak in their capacity as public employees. Applying that distinction has vexed the nation's circuit courts. So far, the Third, Fourth, Seventh, Ninth, and Tenth circuits have developed different and in some instances contradictory standards for deciding whether a public employee's speech is constitutionally protected. Given the spectrum of thought sparked by the Garcetti decision and how it should be applied, further illumination from the country's highest court on this most challenging issue would be welcomed by public employers and employees alike.

Richard Whitmore (San Francisco) and David Urban (Los Angeles) are attorneys with Liebert Cassidy Whitmore, which represents public-agency management.

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