The Next Extension Of Garcetti: Employer Rules Forbidding Speech About Agency Matters

The reverberations from the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), are still being felt. In Garcetti, the Supreme Court held that to receive First Amendment protection, a public employee must speak “as a citizen on a matter of concern.” The Court ruled that speech arising out of an employee’s job is completely unprotected by the First Amendment, even if the content of the speech is accurate and a matter of public interest. In dozens of cases following Garcetti, courts have found that a wide variety of speech related to a public safety officer’s job is no longer protected by the First Amendment.

A case involving the Milwaukee County Sheriff’s Department in Wisconsin illustrates a new extension of the Garcetti rule. The case involves controversial Milwaukee County Sheriff David Clarke, Jr. As summarized by the federal Seventh Circuit Court of Appeals, the case presented the following questions:

“The dispute in this case is what one’s mother might have in mind when she imparts the classic phrase, ‘sticks and stones may break my bones, but words will never hurt me.’ Apparently, Milwaukee County Sheriff Dave Clarke, Jr. did not take this childhood lesson to heart. In the summer of 2005, Sheriff Clarke posted on a roll-call bulletin a quote that at least one deputy, Michael Schuh, considered an offensive challenge to his and his fellow officers’ courage. Schuh fired back by publishing a two-sentence statement challenging Sheriff Clarke’s courage. Sheriff Clarke, apparently afraid that words would hurt him, quickly responded by reassigning Schuh to a newly-created mission in one of Milwaukee’s most crime-ridden neighborhoods.

“Deputy Schuh sued Sheriff Clarke, claiming that Clarke retaliated against him for engaging in protected speech in violation of the First Amendment. Schuh also claimed that a recent change to the Department’s confidentiality policy constituted an unlawful prior restraint. We are sympathetic to Schuh’s position, and we consider Sheriff Clarke’s response against Schuh to be excessive. But there are limits to the First Amendment’s protections when a public employee speaks, and because we find that Schuh was speaking on a matter of purely private concern, we agree with the trial court that judgment in Clarke’s favor was appropriate.”

The most important question in the case concerned the new confidentiality policy put into place by Clarke. Under the new policy, members of the Department are required to “keep agency business confidential. They shall not impart it to anyone except those for whom it is intended, or as directed by the Sheriff or his designee, or is ordered by law. No member of the agency shall speak on behalf of the organization unless authorized to do so by the Sheriff or his designee.”

Schuh and his labor organization, the Milwaukee Deputy Sheriff’s Association, claimed that the confidentiality policy was an illegal “prior restraint on speech.” A prior restraint consists of an order or rule forbidding certain communications when issued in advance of the time the communications are to occur. If prior restraint applies to speech protected by the First Amendment, it is invalid.

Citing Garcetti, the Court found that Clarke’s policy only concerned job-related speech. The Court held that “the directive’s prohibition on employee speech on behalf of the organization regulates unprotected speech owing its existence to the employee’s professional duties. The directive does not apply to speech protected by the First Amendment. The policy only covers ‘official agency business,’ a phrase containing three separate components. First, the regulated information must be ‘business,’ rather than merely a topic of general interest. Second, the term ‘agency’ suggests that the business must be generated by or pertaining to the Sheriff’s Office. Third, and in our view most importantly, the regulated information must be ‘official.’ By requiring the regulated speech to be official, the policy properly restricts only speech grounded in or owing its existence to the employees’ job duties.”

Finally, the Court addressed the manner in which the confidentiality rule was adopted: “To support their claim that the directive was intended to squelch speech protected by the First Amendment, the Association and Schuh also emphasized that the directive was issued the day after they filed their lawsuit. We do not deny that this timing is somewhat suspicious. But according to the record, the Sheriff’s Office had been considering revisions for a number of years, and no employee has been disciplined under the new or the old policy. More importantly, the timing does not alter that we must analyze the policy as a whole and determine whether it regulates protected speech. If the revision was a knee-jerk response to the controversy surrounding Deputy Schuh, it certainly did not stifle criticism from officers, employees, and Schuh regarding the Sheriff’s misuse of his authority. Department employees have levied countless criticisms against the Sheriff regarding this controversy and others, both before and after the revision, resulting in no discipline under either version of the policy.”

Milwaukee Deputy Sheriff’s Association v. Clarke, 2009 WL 2151326 (7th Cir. 2009).

This article appears in the September 2009 issue