Speech Rights of Public Employees: Contextualizing Garcetti
Since its recognition of the right of public employees to speak on matters of public concern in Pickering v. Board of Education, 391 U.S. 563 (1968), the Supreme Court has proven less than generous in protecting that right. Of particular importance, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that if employees speak pursuant to their official work duties, they are not speaking as “citizens,” and their speech enjoys no First Amendment protection. The holding thus substantially restricts constitutional safeguards for government whistleblowers.
Paul Secunda helpfully places Garcetti‘s formalism in a broader jurisprudential context in a new paper on SSRN, “Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law.”