The Strange World Of First Amendment Law Under Garcetti

There’s little question that the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) brought about a revolution in First Amendment law. Under Garcetti, no First Amendment free speech violation occurs if an employer retaliates against an employee for making a truthful statement as part of the employee’s job.

So it was that there was a bit of an Alice In Wonderland air to a recent decision by the federal Fifth Circuit Court of Appeals in a lawsuit brought by three fired corrections officers in Mississippi. In December 2004, Tammy Williams and Cheryl Hambrick – jailers at the DeSoto County jail – allegedly witnessed a jail sergeant beating an inmate. They made a report at the urging of Sergeant Earl Russell, and placed a copy under the door of all the jail officers and Sheriff Riley. Within 28 hours, all three were fired for allegedly sleeping on the job and shirking duties (not filling out logbooks or making rounds).

The officers sued the Sheriff and the County alleging that, in reality, they were dismissed only because filling out the use of force report violated an unwritten policy that “what happens in the jail, stays in the jail.” A jury agreed with them, and awarded them damages.

The appeals court upheld the verdict, but only because the jury had been instructed by the trial judge that it could only rule in favor of the officers if it first determined that the officers’ actual job duties did not include writing use of force reports. Had the officers’ job duties actually included writing use of force reports, they would have lost under Garcetti’s general principle that the First Amendment does not protect speech made as part of the job.

In most states, Garcetti has had little impact, for job protections can be found in collective bargaining agreements, civil service rules, or under public safety officer bills of rights. In Mississippi, though, these sorts of protections are rare, and the Constitution provides the only source for officers’ rights.

Williams v. Riley, 2013 WL 3784242 (5th Cir. 2013).