09-16-2008, 02:08 AM
FYI: From SPPD's site.
Postby Employee Rights on 07/28/08 11:15:15
The Garcetti Decision: Its Impact on Free Speech
The Balancing Test
Before the Garcetti case, courts used a decades-old “balancing” test to decide cases involving public employee speech. The test resulted from two U.S. Supreme Court decisions: Pickering v. Board of Ed. of Township High School Dist.,(1968) and Connick v. Myers (1983). These cases established that a public employee had to prove that his or her speech concerned a matter of public concern and not a personal grievance. The court would then balance the employee’s free speech interests against the employer’s interest in operating an orderly and efficient workplace.
In Pickering v. Board of Ed. of Township High School Dist., a teacher was terminated for sending a letter to a local newspaper criticizing the school board’s allocation of funds. The Court concluded that the school district could not terminate the teacher when he spoke as a citizen on matters of public concern.
In Connick v. Myers, the Court further defined the phrase “matters of public concern.” An assistant district attorney, Myers, complained to her supervisor about a job transfer and other office procedures. To elicit support, Myers circulated a questionnaire about office procedures, causing a disruption in the office. Myers was terminated for refusing to accept the transfer and for insubordination. When the case reached the U.S. Supreme Court, Myers lost because the Court concluded that she did not speak as a citizen about matters of public concern, but as an employee about personal grievances.
Garcetti v. Ceballos (2006)
In Garcetti v. Ceballos, a criminal defense attorney asked deputy district attorney Ceballos to investigate aspects of an upcoming case. Ceballos discovered that the affidavit used for a search warrant seriously misrepresented facts. Ceballos reported his discovery to his supervisors, then followed up with a memo recommending dismissal of the case. After an acrimonious meeting, Ceballos’ supervisors proceeded with the case. Subsequently, Ceballos was reassigned to another position, transferred to another courthouse, and denied a promotion. The U.S. Supreme Court ruled against Ceballos because his statements were made in accordance with his official duties:
"When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
However, all speech within the workplace is not automatically restricted. Referring to Pickering, the Court repeated :
“the First Amendment protects some expressions related to the speaker’s job.” But the Court emphasized the government employer’s need to manage the workplace: “employers have heightened interests in controlling speech made by an employee in his or her professional capacity.”
The following Seventh Circuit cases demonstrate that government employers now have greater discretion in taking action against public employees who voice concerns about the workplace. Nevertheless, the Seventh Circuit has, on occasion, ruled for employees:
Spiegla v. Hull 03.30.2007 desicion:
"Prior to Garcetti, we considered the “content, form, and context” of the employee’s speech to determine whether the employee spoke as a citizen on a matter of public concern, with the content being the most important factor. . . After Garcetti, however, the threshold inquiry is whether the employee was speaking as a citizen; only then do we inquire into the content of the speech."
Fuerst v. Clarke 07.27.2007 desicion:
The U.S. Supreme Court’s holding in Garcetti v. Ceballos appears to have increased the level of control government employers can exert over the speech of their employees. Whereas the courts used to focus first on the nature of the speech to determine whether it was a matter of public concern and then balance the employee’s free speech interests against the interest of the employer in maintaining an orderly work environment, the law now concentrates on whether the employee’s speech was made as a function of their official duties. If it was, the courts will provide that employee with much less free speech protection.
___________________
*Garcetti v. Ceballos, 547 U.S. ____,126 S. Ct. 1951 (2006)
*Pickering v. Board of Ed. of Township High School Dist. 2005 Will City, 391 U.S. 563, 88 S.Ct. 1731 (1968)
*Connick v. Myers, 461 U.S. 138,103 s. Ct. 1684 (1983)
*Spiegla v. Hull, 481 F. 3d 961 (7th Cir. 2007)
*Morales v. Jones, 2007 WL 2033754
* Fuerst v. Clarke, 454 F. 3d 770 (7th Cir. 2007)
Postby Employee Rights on 07/28/08 11:15:15
The Garcetti Decision: Its Impact on Free Speech
The Balancing Test
Before the Garcetti case, courts used a decades-old “balancing” test to decide cases involving public employee speech. The test resulted from two U.S. Supreme Court decisions: Pickering v. Board of Ed. of Township High School Dist.,(1968) and Connick v. Myers (1983). These cases established that a public employee had to prove that his or her speech concerned a matter of public concern and not a personal grievance. The court would then balance the employee’s free speech interests against the employer’s interest in operating an orderly and efficient workplace.
In Pickering v. Board of Ed. of Township High School Dist., a teacher was terminated for sending a letter to a local newspaper criticizing the school board’s allocation of funds. The Court concluded that the school district could not terminate the teacher when he spoke as a citizen on matters of public concern.
In Connick v. Myers, the Court further defined the phrase “matters of public concern.” An assistant district attorney, Myers, complained to her supervisor about a job transfer and other office procedures. To elicit support, Myers circulated a questionnaire about office procedures, causing a disruption in the office. Myers was terminated for refusing to accept the transfer and for insubordination. When the case reached the U.S. Supreme Court, Myers lost because the Court concluded that she did not speak as a citizen about matters of public concern, but as an employee about personal grievances.
Garcetti v. Ceballos (2006)
In Garcetti v. Ceballos, a criminal defense attorney asked deputy district attorney Ceballos to investigate aspects of an upcoming case. Ceballos discovered that the affidavit used for a search warrant seriously misrepresented facts. Ceballos reported his discovery to his supervisors, then followed up with a memo recommending dismissal of the case. After an acrimonious meeting, Ceballos’ supervisors proceeded with the case. Subsequently, Ceballos was reassigned to another position, transferred to another courthouse, and denied a promotion. The U.S. Supreme Court ruled against Ceballos because his statements were made in accordance with his official duties:
"When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
However, all speech within the workplace is not automatically restricted. Referring to Pickering, the Court repeated :
“the First Amendment protects some expressions related to the speaker’s job.” But the Court emphasized the government employer’s need to manage the workplace: “employers have heightened interests in controlling speech made by an employee in his or her professional capacity.”
The following Seventh Circuit cases demonstrate that government employers now have greater discretion in taking action against public employees who voice concerns about the workplace. Nevertheless, the Seventh Circuit has, on occasion, ruled for employees:
Spiegla v. Hull 03.30.2007 desicion:
"Prior to Garcetti, we considered the “content, form, and context” of the employee’s speech to determine whether the employee spoke as a citizen on a matter of public concern, with the content being the most important factor. . . After Garcetti, however, the threshold inquiry is whether the employee was speaking as a citizen; only then do we inquire into the content of the speech."
Fuerst v. Clarke 07.27.2007 desicion:
The U.S. Supreme Court’s holding in Garcetti v. Ceballos appears to have increased the level of control government employers can exert over the speech of their employees. Whereas the courts used to focus first on the nature of the speech to determine whether it was a matter of public concern and then balance the employee’s free speech interests against the interest of the employer in maintaining an orderly work environment, the law now concentrates on whether the employee’s speech was made as a function of their official duties. If it was, the courts will provide that employee with much less free speech protection.
___________________
*Garcetti v. Ceballos, 547 U.S. ____,126 S. Ct. 1951 (2006)
*Pickering v. Board of Ed. of Township High School Dist. 2005 Will City, 391 U.S. 563, 88 S.Ct. 1731 (1968)
*Connick v. Myers, 461 U.S. 138,103 s. Ct. 1684 (1983)
*Spiegla v. Hull, 481 F. 3d 961 (7th Cir. 2007)
*Morales v. Jones, 2007 WL 2033754
* Fuerst v. Clarke, 454 F. 3d 770 (7th Cir. 2007)