To say that free speech law with respect to public employees is in serious disarray is not an understatement. To point to Supreme Court decisions as the source of the confusion is an easy target.
Before 2006, there was little controversy over the scope of the free speech rights of public employees. Courts looked at whether the speech concerned a matter of public concern and, if so, balanced the public importance of the speech against any demonstrable harm to the employer resulting from the speech. High degree of protection was given to speech about the wrongdoing of other public employees.
All of that changed with the Supreme Court’s 5-4 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). Garcetti announced a broad new rule – that speech by public employees would gain protection only if it were made “as a citizen.” The Court held that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
The four dissenting justices in Garcetti warned that the decision would usher in a new era of retaliation against whistleblowing employees, a prophecy that has largely proven accurate. The last nine years have seen courts upholding the terminations of public safety employees for reporting corruption, making truthful statements in internal investigations, cooperating with criminal investigations, and writing memoranda about serious operational or safety problems. In all these cases (and many more), courts ruled that the statements made by the employees were “pursuant to their official duties” and thus not entitled to any protection under the First Amendment even if the statements were completely truthful.
In 2014, the Supreme Court confronted the harshness of these rules in Lane v. Franks, 134 S. Ct. 2369, a case involving the firing of an administrator of a state program who reported an employee – who was also an Alabama state legislator – for collecting pay for hours she had not worked. The Supreme Court held that the employee’s speech was protected under the First Amendment, holding that “truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes.”
It was clear that Lane backtracked on the Garcetti rule. Under a strict application of Garcetti, the employee was acting “pursuant to his official job duties” in reporting the legislator. The question now being debated is how much the Court backtracked, and how far the door is open for free speech lawsuits by public employees disciplined for reporting corruption.
“Not much,” the Fifth Circuit Court of Appeals has just answered in the first federal Court of Appeals decision interpreting what is now being called the Garcetti-Lane rule. The case before the Court involved Drew, Mississippi Police Chief Anthony Gibson, whose mayor recommended him for termination after Gibson reported the mayor’s misuse of a gasoline credit card. Gibson reported the misuse to the Mississippi Office of State Auditor (OSA), the Mississippi Attorney General, the FBI and the DEA. Gibson sued, claiming his termination violated his First Amendment rights. As part of his case, Gibson had to prove that the Mayor violated Gibson’s “clearly established constitutional rights.”
The Court began with Lane’s use of the term “ordinary job duties,” a phrase appearing nine times in the Supreme Court’s decision. While the Court acknowledged that the insertion of “ordinary” might signal a narrowing of the Supreme Court’s position on Garcetti‘s coverage, it did not matter for purposes of Gibson’s lawsuit: “Whatever change in the jurisprudence ‘ordinary’ may augur, we are unable to discern any change in Garcetti’s rule from Lane applicable to this case, for any change resulting from Lane cannot be said to have been clearly established at the time of the challenged conduct.”
The Court then turned to Lane’s discussion of the importance of public employees reporting corruption, and in particular to Lane’s statement that “it would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials – speech by public employees regarding information learned through their employment – may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”
Again, the Court was skeptical that Lane changed much about Garcetti, and certainly not enough to help Gibson: “We doubt that this discussion means that speech is ‘as a citizen’ whenever public corruption is involved, as that could conflict with the opinion in Garcetti. Rather, the passage must be read in the context of Lane’s facts and in light of Lane’s statement that the opinion does ‘not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties.’ The testimony of public employees is frequently necessary to prosecute public corruption. But it cannot be said to be strictly necessary that they be speaking pursuant to their official duties when they testify in order to prosecute public corruption. As such, it cannot be said that Lane’s discussion of public corruption alters Garcetti in a way that is clearly established for purposes of this case.”
Finally, the Court had to “confront” the sweeping statements in Lane of the legal obligation to testify truthfully, particularly about public corruption. Again, the Court found no help for Gibson in Lane: “But any such independent legal obligation is only relevant if Gibson was speaking pursuant to his official duties; otherwise, his speech would be outside of Garcetti’s ambit regardless. And, fatally, if Gibson was speaking pursuant to his official duties and was under an independent legal obligation as a citizen to report crime, it would raise the question that Lane expressly declined to answer, that is, whether there are obligations as a citizen that preempt obligations as an employee for First Amendment purposes. As such, we could not say that such a right was ‘clearly established’ at the time Gibson was allegedly retaliated against.
“Gibson was Chief of Police for the City, indicating that communicating with outside law enforcement agencies was part of his job responsibilities. The presumption is buttressed by Gibson’s admission that he reported his concerns about the gas card to law enforcement officers at the outside agencies whom he had met through his official duties. It is also supported by his statement in a letter to the Mayor and Board of Aldermen that he worked with the FBI and DEA as part of his role as Chief of Police.
“Moreover, the facts of this case make plain that Gibson was acting pursuant to his official duties when he made the reports to the OSA. For Gibson did not merely make a report to the OSA on his personal time after work. He met with the investigator in his office, he coordinated his department’s resources with the OSA, and he instructed his employees to aid extensively in the investigation. All of this is compelling circumstantial evidence that Gibson reported the misuse of the gas card not as a citizen, but in his official capacity as Chief of Police. The fact that what was being reported in this case was public corruption does not change the result – Garcetti’s rule is a broad one, and it must be applied even where it may lead to a potentially distasteful result in an individual case.”
Gibson v. Kilpatrick, 773 F.3d 661 (5th Cir. 2014).
Note: There seems little doubt the Supreme Court will have to take up the Garcetti issue once again. The result in Gibson’s case – that a police chief could potentially be fired for reporting public corruption to the proper authorities – seems so antithetical to Lane that much more clarity from the Supreme Court is needed.