Free Speech Fundamentals: Government employees have free speech rights only when they speak as private citizens.
The Supreme Court has said that government employees do not leave their constitutional rights at the door when they go to work. They have the same rights to free speech as any other citizen. But things can be tricky because - in a sense - they are the government. And the people in charge in government are supposed to be able to control what the government does, including its speech. In other words, when government employees speak, and the speech is part of their job as government employees, then the government boss can control the speech as it wishes.
This is the reason for the Supreme Court's Garcetti rule. Among other things, the Garcetti rule says that a government employee's speech is protected only if they are speaking as a
private citizen, and not as a
This should be pretty straightforward. It should mean that PR people and others with responsibility for speaking to the public or the media are unprotected when engaging in that public speech. Unfortunately, the Court has interpreted it far too broadly, to include even purely internal speech, such as when an employee blows the whistle on a supervisor's misconduct by reporting it up the chain of command. The Court says this is usually part of the government job, and so unprotected.
But there is a limit. When an employee goes outside the chain of command and blows the whistle directly to the public or the media, it is typically not part of the job. The courts have made it quite clear in caselaw interpreting Garcetti that when
a public employee takes his job concerns to persons outside the workplace in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen. Davis v. McKinney,518 F.3d 304, 313 (5th Cir. 2008).
This remains true when speech concerns information related to or learned through public employment. Lane v. Franks, 134 S. Ct. 2369, 2377 (2014).
The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. Id. at 2379.
One interesting Fifth Circuit case on this point is Anderson v. Valdez, 845 F. 3d 580 (5th Cir. 2016). InAnderson, a staff attorney for a state court sent a letter to the state supreme court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by one of his bosses. His boss (the judge he had reported) retaliated by preventing him from working with another judge. The Court held that it was well established law that these sorts of complaints to people outside the employer are typically speech as a private citizen, and thus protected by the First Amendment.
Unfortunately, however, that was not the end of the saga. Three years later (five years after the retaliation) the case was still dragging on, and the employer tried again to throw the case out and made a slightly different argument. Anderson v. Valdez, 913 F. 3d 472 (5th Cir. 2019). This time the government claimed that the staff attorney had promised - as part of his job duties and oath of office - that he would report misconduct to the state commission. For this reason, the report was part of his job and not speech as a private citizen. This time, the Fifth Circuit agreed with the employer and noted that this was an exception to the usual rule. Because his job duties specifically included reporting to the commission it was not protected speech.
The Anderson saga provides many, many lessons for us as lawyers - sad, unfortunate, cynical lessons. But for the employee the main lesson should be to take great care to consult with an attorney about what will and will not be protected speech if you are planning to go out on a limb and blow the whistle on your boss. The steps you need to take are likely to be counterintuitive.
This post is part of a series on free speech rights of government employees. Read the rest below:
- Government employees have more rights when they speak through their union - 2/12/2020
- Free Speech fundamentals: Unconstitutional rules restricting government employee speech - 2/6/2020
- Free Speech fundamentals: Prior Restraints - 1/29/2020
- Free Speech fundamentals: Overbreadth and vagueness - 1/20/2020
- Free Speech fundamentals: Viewpoint discrimination - 1/15/2020
- Free Speech fundamentals: State action - 1/8/2020
- First Amendment Free Speech Rights of Government Employees - 10/15/2018
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