Circuit Court Interpretations of Garcetti V. Ceballos and the Development of Public Employee Speech

INTRODUCTION The Supreme Court has firmly established that the First Amendment's ambit covers the speech of public employees, (1) but the extent of that coverage is subject to certain constraints. One such restriction, as pronounced in Garcetti v. Ceballos, (2) consists of a categorical denial of the Constitution's protection for speech made "pursuant to [an employee's] official duties." (3) Unfortunately, the Court in Garcetti explicitly refused to provide a definite framework for delineating the scope of employment. (4) Instead, the Court merely stated that "[t]he proper inquiry is a practical one." (5) Though many have characterized Garcetti as a hallmark of formalism in its adoption of an absolute prophylactic rule, (6) the decision "has provided considerable room for the circuit courts to carve out ... their unique and circuit-specific determinations of the [case's] import." (7) For these courts, concluding that an employee's speech fails within or without his or her official duties has become an indeterminate affair. Though the circuits do share a number of tests, Garcetti's nebulous language has allowed great leeway for courts to adopt their own unique approaches. As a result, the process of resolving a public employee's scope of employment for First Amendment purposes often varies with the jurisprudence of the individual circuits. More importantly, even where a court can plainly ascertain the scope of employment, Garcetti's categorical holding provides no leeway for speech of such public importance that it may deserve constitutional protection despite the fact that it exists because of the employee's official duties. This Note aims to shed light on the similarities and discrepancies that exist among the federal circuit courts (8) in defining the scope of official duties according to Garcetti's mandate, as well as to propose a new take on the public employee speech analysis. Part I begins with a very brief history of the development of the First Amendment jurisprudence regarding public employee speech, including an analysis of the Supreme Court's holding in Garcetti. Part II delves into the vast array of circuit court constructions of Garcetti. This includes an examination of the factors that the circuits share as well as those that are distinctive to certain courts. Finally, Part III examines circuit decisions that seemingly take an expansive view of the scope of employment. The Part also addresses certain defenses and criticisms of Garcetti and its subsequent implementation by the courts of appeals, ending with a proposal for the future of the First Amendment's application to public employee speech. Specifically, the law should return to a balancing standard in resolving these types of cases, where the initial "scope of employment" inquiry is settled by a contextual analysis that focuses on those duties either plainly required by employers or so intertwined as to be nearly inseparable. I. THE EVOLUTION OF PUBLIC EMPLOYEE SPEECH JURISPRUDENCE Until the latter half of the twentieth century, courts did not accept the notion that the First Amendment might protect public employee speech. Yet the last sixty years have yielded an intricate jurisprudence extending the First Amendment to public employees in limited circumstances. This Part presents a succinct history of the Supreme Court's treatment of public employee speech, focusing especially on the Court's decision in Garcetti. A. The Pre-Garcetti Era Constitutional recognition of public employee speech rights is a relatively recent phenomenon. Until the middle part of the twentieth century, public employees "enjoyed no recognized constitutional protection from conditions placed upon their employment, including those that restricted constitutional rights, such as free speech." (9) This all changed, however, in the 1950s and 1960s as the Supreme Court began to acknowledge a place within the First Amendment for such speech. …