By J. DeVoy
Public employees in political jobs often walk a difficult line when they speak about current affairs. Historically, this speech was protected by the Pickering-Connick test, established in Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). Under that test, courts engaged in a two-step inquiry: First, whether the employee’s speech was a matter of public concern based on its content, form and context, and Second, if the speech was a matter of public concern, if the public employer had an adequate justification for treating the employee differently from any other member of the general public.
In 2006, the United States Supreme Court added a new threshold inquiry to this analysis. In Garcetti v. Ceballos, 547 U.S. 410 (2006), a five-justice majority held that a prosecutor who criticized the circumstances under which a warrant was issued made his statements as a public employee. As a consequence, the Supreme Court found that his statements were not protected by the First Amendment, and his civil liberties were not violated when the office passed him over for a promotion as a consequence of them.
At the time of this decision, there was considerable concern that this would limit the free speech of government employees. In Kennedy’s majority opinion, the court addressed this concern, which Souter raised in his dissent. The majority found it very unlikely that public entities would create positions with excessively broad job descriptions that would effectively muzzle employees. The court noted that an employee’s actual responsibilities were at issue, which could depart significantly from his or her job description; a task’s mere inclusion in a job description is “neither necessary nor sufficient” to show it was entailed in the employee’s actual job duties.
A Different Problem Arises
While the issue of overbroad job descriptions has not come to pass, a new problem may be brewing in the circuit courts. There seems to be wide discrepancy in how Garcetti has been applied to subsequent cases, emanating from the Fifth Circuit. While the Supreme Court engaged in a probing analysis of public employees’ job duties, the Fifth Circuit has taken a more mechanistic view of this inquiry, and repeatedly held that statements relevant to job duties are made as state employees, rather than as private citizens.
In Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008), the Circuit Court held that the defendant’s statements about the University of Texas Health Science Center in Houston’s inadequate response to a child pornography investigation were statements made as an employee because they related to her job duties. In particular, the court stated:
Activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection.
Davis, 518 F.3d at 313. The defendant’s statements about the pay for vice presidents in the Health Science Center, statements to the FBI about child pornography on the computers and general concerns about racial discrimination by the Health Science Center were held to be speech made as a private citizen.
Similarly, in Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), a systems analyst’s complaints about racial discrimination in the Texas Lottery Commission were held to be made as a private citizen. Although this discrimination arose in the course of Charles’s employment, addressing racial equality was not within the purview of his duties as an analyst. Therefore his statements were made as a private citizen and afforded certain First Amendment protections by the court.
Not every statement made by these employees was snared in a net preventing free speech, but the Fifth Circuit did not analyze the statements it found to be made as public employees beyond acknowledging that they related to work duties. These statements may have significant value and otherwise be protected under the Pickering-Connick test, but cannot even reach that point. Simply because the statements relate to work duties, the Fifth Circuit considers them to be statements made within the scope of public employment, rather than speech by a private citizen.
Other Circuits have engaged in more aggressive inquiries about when a speaker makes statements pursuant to their official duties, rather than whether or not the statements were related to their job duties. Just because an individual makes a statement related to his or her job and the duties within it does not mean he or she is speaking pursuant to those duties. In Bivens v. Trent, 592 F.3d 555 (7th Cir. 2010), the Seventh Circuit addressed this very concern and acknowledged the ambiguity surrounding statements relating to job duties made to third parties, but held that reports to supervisors, required as part of Bivens’ job duties, were made pursuant to them. In Fuerst v. Clarke, 454 F.3d 770 (7th Cir. 2006) the Seventh Circuit declined to find a sheriff’s statements, though relating to his job duties, were made pursuant to them when he spoke in his capacity as a union representative.
Implications for Public Employees
Though the doomsday scenario prophesied by the Garcetti dissents has not come to pass, the Fifth Circuit’s jurisprudence paints a bleak picture of the future for other reasons. The language of the Davis opinion, quoted above, “activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection,” misses the point of Garcetti and does not square with the holdings of other jurisdictions, such as the Seventh Circuit.
Actions undertaken in the course of performing job duties are distinct from activities arising pursuant to official duties. As the Seventh Circuit has read the law, speech made pursuant to job duties is essentially required by it. This is not the case for speech made during the performance of job duties, which case law shows can be quite broad – especially in the case of policy-setting positions, where political statements and criticism can easily relate back to the speaker’s job duties and be denied First Amendment protection.
Therefore, there is a need to more clearly delineate between speech made relating to job duties and pursuant to them. If the two are treated the same, as is the case in the Fifth Circuit, then virtually all criticism and communication about one’s job will be silenced. There will be no need for the Pickering-Connick test under this regime, as those who talk frankly about their job duties will never be able to reach it and prove the public import of their speech.
This is a problem for many reasons. First, it stifles individual freedom of expression. Second, it interferes with the ability of government employees to identify what’s wrong in their line of work, potentially improving government operations for all and ensuring that finite tax dollars are better allocated. This is a serious issue for public employees who wish to freely discuss things related to their job duties – but not pursuant to them – in an effort to seek advice or share information here or on racier websites, such as JDUnderground or AutoAdmit.
If all such instances of speech are considered part of the speaker’s work duties, employees will be left with an unenviable decision: speak freely and risk employer retaliation, or say nothing and suffer in silence. Beyond the constitutional expectations of free speech that we all enjoy, preserving First Amendment protections for such speech helps those who best know how to improve public employers’ efficiency and efficacy to be heard.
H/T: Andrew Rima, my brilliant moot court partner, who helped me wade through this issue for the 2009 National First Amendment Moot Court Competition.
Posted by J DeVoy 
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