Policeman, Citizen, or Both? a Civilian Analogue Exception to Garcetti V. Ceballos

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy-especially because the value of the employee's speech to the public is no less if she is speaking pursuant to mixed motivations.A recent Second Circuit case, Jackler v. Byrne, suggests an exception to Garcetti's categorical bar. Because the public employee's speech in Jackler had a civilian analogue-that is, because an ordinary citizen could speak in the same manner and to the same audience-the court allowed the employee's claim to proceed. The Second Circuit's exception contradicts Garcetti, but it furthers significant First Amendment values while adequately protecting public employers' interest in controlling employee speech. As such, the Supreme Court should adopt the civilian analogue exception to ameliorate Garcetti's problematic rule.IntroductionSpeech law has evolved considerably from Justice Oliver Wendell Holmes's declaration that "[a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."1 Today, the law prohibits the government from basing a policeman's employment on a condition that violates his First Amendment right to freedom of expression. 2 This doctrine recognizes that the threat of dismissal from public employment is "a potent means of inhibiting speech"3 and that the significant public interest in free and open debate on matters of public concern requires giving public employees the same meaningful speech protection that other citizens enjoy.4 Thus, in a series of landmark decisions beginning in the 1960s, the Supreme Court crafted a First Amendment doctrine that protects public employees from employer retaliation in response to the employees' speech.5This protection follows from basic First Amendment values. First, a government employee has the same interest in commenting on public matters that a nongovernment employee has.6 Second, there is "value to the public [in] receiving the opinions and information that a public employee may disclose."7 At the same time, the Court's decisions acknowledged that the First Amendment should not insulate a public employee's disruptive speech at a significant cost to her government employer, even if that speech related to a public matter.8 The resulting doctrine, known as the Pickering- Connick framework, involves a threshold inquiry and a balancing test: a public employee's speech is protected only if (1) the employee was speaking on a matter of public concern9 and (2) the employee's interest in speaking outweighs the employer's interest in controlling her speech.10In 2006, the Supreme Court added a third requirement to the doctrinal framework-a requirement that drastically curtails the speech rights of government employees. In Garcetti v. Ceballos, the Court categorically denied First Amendment protection to any public employees who speak "pursuant to their official duties."11 For a public employee to have any chance of sustaining a First Amendment retaliation claim post-Garcetti, the employee must have spoken entirely "as a citizen" and not at all "as an employee."12 Under this test, when a public employee's speech concerns the subject matter of her employment, the government employer's interest in controlling its operations and message is assumed to always outweigh the employee's interests and the interests of the public.13The line the Garcetti Court drew between the employee's dual roles as citizen and public servant lacks adequate justification. …