Watch what you say when it's work related
Published 06/09/06

Employees have limited freedom of speech at the workplace. This point was verified by a decision of the United States Supreme Court in the case of Garcetti, et al v. Ceballos , decided on May 30, 2006.

This case dealt with the extent of freedom of speech under the First Amendment for public employees. The constitutional right of freedom of speech applies more to public employees than private employees in that as a public employee, the government as the public employer, has some restrictions in limiting the free speech of its citizens, including public employees.

In the Garcetti case, Ceballos, a supervising deputy district attorney, was asked by a criminal defense counsel to review a case in which defense counsel claimed the affidavit police used to obtain a critical search warrant was inaccurate. Ceballos reviewed the affidavit and concluded that the police officer had made serious misrepresentations and reported same to his supervisors.

Specifically, the search warrant affidavit called a long driveway what Ceballos thought should have been referred to as a separate roadway and stated that tire tracks led from a stripped-down truck to the premises covered by the warrant wherein Ceballos concluded that the roadway's composition in some places made it difficult or impossible to leave visible tire tracks. He followed up with a disposition memorandum recommending dismissal of the charges.

His supervisors, nevertheless, proceeded with the criminal prosecution and the trial court agreed with Ceballos' supervisors that the search warrant was valid notwithstanding Ceballos' claim of misrepresentation of fact used to obtain the search warrant. Ceballos thereafter claimed that his supervisors retaliated against him for the memorandum in violation of his constitutional rights for freedom of speech including: reassignment from his job position; transfer to another courthouse; and denial of a promotion. The case ultimately ended up in the United States Supreme Court.

The nine-member Court in a five to four decision held that when public employees make statements pursuant to their official duties, they are not speaking as citizens and therefore the Constitution does not prevent them from being disciplined for their speech.

The Court held that there is a two-part inquiry to determine whether or not constitutional protections are afforded to a public employee's speech. The first requires determining whether or not the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no freedom of speech cause of action based upon the employer's reaction to the speech. If the answer is yes, however, the question then becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. This consideration acknowledges that without a significant degree of control over an employee's words or actions, a government employer would have little change to provide public services efficiently.

Simply put, a government entity has broader discretion to restrict speech when it acts in its employer role but the restriction it imposes must be directed at speech that has some potential to affect its operation.   

The Court found that Ceballos' speech was made pursuant to his official responsibility and he was subject to managerial discipline. The Court noted that exposing governmental inefficiency and misconduct is certainly a matter of considerable significance, yet various measures have been adopted to protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions such as federal and state whistleblower protection laws and labor codes.

However, the Court found that there is no existence of a constitutional right behind every statement a public employee makes in the course of his or her job.

Private employees, while likewise protected under whistleblower statutes and other protective labor laws, do not have a constitutional right to freedom of speech related to their job and therefore would be misplaced to believe that they have a constitutional right to disparage co-workers, supervisors, or their employer.

The net affect of this decision may be that some public employees will hereafter be less likely to challenge decisions or statements of co-employees and supervisors that they find are inappropriate, in fear of being disciplined.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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