ABSTRACT
From: Public Administration Review 67(2007): 662-72. Abridged. On May 30, 2006, the U.S. Supreme Court held in Garcetti v. Ceballos
[126 S.Ct. 1951; 547 U.S. 410] that the First Amendment does not prohibit public employers from disciplining employees for the content of written communications made in the performance of the employee’s official duties, even though that content might qualify for First Amendment protection under the so-called public concern doctrine. The decision prohibits federal courts from considering complaints brought by public employees alleging that they faced discipline for the content of statements made in official communications. Speaking for the five-vote majority, Justice Anthony Kennedy held that “the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities” (Garcetti v. Ceballos, 1961). Justice Kennedy went on to explain 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 written communications from employer discipline” (Garcetti v. Ceballos, 1960). Despite the limited scope of the Garcetti decision, it provides public
employers much greater discretion to regulate the internal job-related statements and communications of their employees without fear of triggering a First Amendment lawsuit. Although the Garcetti majority argued that the decision would not have a chilling effect on the willingness of public employees to report misconduct and governmental inefficiency, this article maintains that the decision is likely to discourage public employees from making use of the chain of command to report instances of misconduct and government inefficiency or to express dissenting views regarding matters of public concern for fear that they may face retaliation for such communications made in the course of performing their official duties (Rutzick, 2006). This article also argues that although many public agencies may view the Garcetti decision as an important first step toward limiting the judicial oversight of routine public personnel disciplinary decisions, in fact, the decision may make it more difficult for public agencies to obtain vital information that is necessary to improve the efficiency and effectiveness of
tell to informal workplace communications as well.
