Defense Digest

Federal - Municipal Liability
Top Court Limits The Scope Of A Public Employee First Amendment Retaliation Claim

"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." This Supreme Court holding in Garcetti v Ceballos, 126 S.Ct. 1951 (May 20, 2006), is welcome news to public employers and those of us who defend public officials. Public employees who have found broad protection for speech that touches upon a public concern have previously dominated the First Amendment battleground. In Garcetti the Supreme Court provided armor to the public employer by clarifying that it has a right to restrict speech that is made pursuant to a public employee’s professional duties.

I previously addressed the onslaught of First Amendment claims in my article "The First Amendment’s Rising Popularity in Municipal Employment Litigation," Defense Digest, Vol. 10, No. 2, 2004-06. That is, where a public employee may lack other types of protection in his or her job, or where the employee has exhausted any state remedies, the employee may often allege that an adverse employment decision was a result of the exercise of his or her right to free speech.

The Third Circuit has historically analyzed these claims with a three-prong test. First, the speech must have involved a matter of public concern. If that threshold was met, then a plaintiff is required to show that his interest in the speech outweighed the public employer's interest in promoting the efficiency of its services. If the plaintiff could meet the first two prongs, then the plaintiff was further obligated to show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Even if the plaintiff could meet these three prongs, the public employer could rebut the claim by demonstrating "it would have reached the same decision even in the absence of the protected conduct." Baldassare v. New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001).

The first prong had been based on the Supreme Court’s holding in Pickering v Board of Education, 88 S.Ct. 173 (1968) and Connick v. Myers, 103 S. Ct. 1684 (1983). Connick instructed us to begin an analysis of whether speech could be protected by determining whether the speech was made "as a citizen upon matters of public concern." The Third Circuit and other circuit courts, such as the Ninth Circuit, where the Garcetti case originated, had focused on the public concern test and eradicated the prerequisite that the speech must have been made as a public citizen. For example, in Garcetti, the Ninth Circuit had held that a district attorney's memo to his superiors that criticized a deputy sheriff’s affidavit supporting an application for a search warrant was entitled to First Amendment protection, even though it was the district attorney's job to review applications for search warrants and report his findings to his supervisors. Mr. Garcetti argued that the memo recited what he believed to be governmental misconduct and was, thus, a public concern. He also argued that his reassignment and failure to receive a promotion resulted from the submission of the memo. On that basis, the Ninth Circuit found that Garcetti's First Amendment retaliation claim survived the defendant employer's motion for summary judgment. The Supreme Court reversed the Ninth Circuit because the Ninth Circuit had not considered whether Garcetti had spoken in the memo as a private citizen.

In Baldassare v. New Jersey, the Third Circuit specifically declined to distinguish between a public employee's speech made as an employee and that expression as a citizen and, instead, instructed that the value of the speech itself was the determinative factor of whether speech was entitled to First Amendment protection.

In its opinion in Garcetti, the Supreme Court firmly rejected the idea that any speech made by a public employee that touches upon a public concern is entitled to First Amendment protection. Rather, the dispositive factor entitling speech to protection is whether it was made pursuant to official duties. The Garcetti decision thereby overrules the three-prong test for whether speech is protected by the First Amendment because the first prong failed to include whether the speech that allegedly touched upon a public concern was made by an employee as a private citizen or as an employee.

This landmark Garcetti decision should work to curtail many existing and future public employment retaliation claims that, in the past, could have survived the Third Circuit's three-prong test. It is noted, however, that we may continue to see these types of claims in other forums. For instance, in response to criticism that a public employee may not feel free to report wrongdoing, the Supreme Court in Garcetti observed that said speech might properly be the basis of a whistleblower suit or other labor law grievance. One important distinction for the public employer is that the employee who files suit under state whistleblower or other labor laws may not have an automatic entitlement to attorney fees in those types of lawsuits or grievances.

We should keep in mind that the defense of a public employer to a First Amendment claim that relies upon the fact that the alleged protected speech was not made as a private citizen might not always be clear. The Garcetti opinion implies that the determination of whether speech is made in an employee’s capacity as a private citizen or whether the speech is made pursuant to an employee’s official duties may not be so obvious. In Garcetti, it was stipulated that the district attorney authored the memo pursuant to his official duties to advise his supervisors how to best prosecute a case. The court wrote, "[W]e thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate." Garcetti, 126 S.Ct. at 1961. The decision will not turn on the scope of a formal job description as the proper inquiry will be a practical one. Whether speech is made at work will not be dispositive, nor will whether speech is job-related. It is possible for a public employee to make a protected expression at work given that citizens often express themselves at work. It is also possible that speech related to one’s employment may be protected. For example, a teacher may speak freely about a school district’s financial operations. Pickering, 88 S.Ct. 1731 (1968).

Nevertheless, a public entity can now be confident that it is protected from retaliation claims that are based on an employee’s speech that is made pursuant to the employee’s professional duties, and a public entity is free to make employment decisions as a result of said speech. Although it cannot insulate itself from potential liability by creating broad job descriptions, a public entity can protect itself from retaliation suits by having written job descriptions that are tailored to an employee’s day-to-day activities. A public entity is assured that it has a lawful right to restrict "speech that owes its existence to a public employee’s professional responsibilities."

It will surely be harder for a public employee to present a First Amendment retaliation claim in the wake of Garcetti. The Third Circuit has not yet had the occasion to address it and acknowledge that its three-prong test is no longer precedential. Although the Supreme Court left open various avenues where a public employee can show that speech was made as a private citizen and is thereby protected, its opinion in Garcetti is a triumph for public entity employers who have previously been inundated with First Amendment retaliation claims or threats of such claims.

*Trish is a shareholder in our Pittsburgh, PA office. She can be reached at (412) 803-1151 or pamonahan@mdwcg.com.