Supreme Court Speaks Loudly on Government Employee Speech

On Wednesday, the U.S. Supreme Court spoke loudly on government
employee speech, in particular speech made pursuant to their official
duties as public employees. In the case, Garcetti v. Ceballos,
the court reasoned that a public employee is not a private citizen,l
for the purpose of using the First Amendment protection of free speech,
when speaking under his or her "professional responsibilities." When
speaking under such professional responsibilities, the employee is
still under the control of the employer, and thus, the employer may
regulate what is spoken.



This was a 5-4 decision, and the dissents are worth reading, especially
Souter's which addresses schools directly. This case, probably,
evidences the direct impact of Justice Alito
on the court. This case was reheard (a rare event on the court) after
Justice Alito joined the bench, and with the decision now published, it
is clear the court was split 4-4 and needed his vote as the tiebreaker.




This decision emerged out of the context of a district attorney's
office, but there is little doubt it will apply to schools. Cases such
as Pickering
and other cases based on school driven fact patterns were cited
throughout. What this means for schools is a little unclear, although
speech that could be considered within their professional
responsibilities as employees of school districts will no longer be
protected. How far this extends and what will be considered part of an
employees official duties will need to be worked out in the courts over
the coming years. One this is sure, however, teachers and
administrators need to think twice before making potentially
detrimental comments about their employer, the school. You can make
your own decision about whether this is a healthy development.



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