Indiana Law Review


Garcetti v. Ceballos: Public Employees Left to
Decide "Your Conscience or Your Job"*

Elizabeth M. Ellis"

Introduction

The Supreme Court recognized that the First Amendment "was fashioned to
assure unfettered interchange of ideas for the bringing about of political and

social changes desired by the people."
1

Memorializing that ideal, the Supreme
Court stated that the government

may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests—especially, his interest in freedom
of speech. For if the government could deny a benefit to a person

because of his constitutionally protected speech or associations, his

exercise of those freedoms would in effect be penalized and inhibited.

. . . Such interference with constitutional rights is impermissible.
2

However, in contrast to this articulated ideal, in Garcetti v. Ceballos,
3
the

Court permitted interference with the free speech rights of public employees. In

Garcetti, a sharply divided 5-4 Court held that a public employee's speech made
"pursuant" to the speaker's official job duties was afforded no First Amendment
protection against an employer' s retaliatory actions because such speech is made
in the capacity of an employee and not in the capacity of a citizen for First

Amendment purposes.4 While certain circuit courts of appeals had previously
established Garcetti-type exclusions for First Amendment protection of public
employees' speech relating to their official job duties, before Garcetti, the

Supreme Court had not categorically excluded such speech from First

* Press Release, American Federation of State, County and Municipal Employees, Supreme

Court to Public Employees: 'Your Conscience or Your Job' (May 30, 2006), http://www.afscme.
org/press/6659.cfm (quoting the reaction of Gerald W. McEntee, President of the American
Federation of State, County and Municipal Employees, to the United States Supreme Court decision

in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006)). McEntee cautioned, "[T]he Supreme Court has

sent a chilling warning to potential government whistleblowers that their anxiety about potential

retaliation is well-founded. The Court has said to public employees, in effect: 'Your conscience

or your job. You can't have both.'" Id.
** J.D. Candidate, 2008, Indiana University School of Law—Indianapolis; B.A., 1998,

Indiana University, Bloomington, Indiana. I would like to thank R. George Wright, Lawrence A.

Jegen, III Professor of Law, for his advice throughout the development of this Note. Additionally,

I would like to thank my husband, John, and all of my family and friends for their love, support,
and encouragement.

1. Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting Roth v. United States, 354 U.S.

476,484(1957)).

2. Perry v. Sindermann, 408 U.S. 593, 597 (1972) (reaffirming that a teacher's public

disagreement with superiors on issues of public concern may warrant First Amendment protection

from retaliatory action).

3. 126 S. Ct. 1951(2006).

4. Id. at 1960.



188 INDIANA LAW REVIEW [Vol. 41:187

Amendment protection.5 Rather, the Supreme Court required that the speech
address a matter of public concern and then weighed the employee's interest in

commenting on a matter of public concern against the employer's interest in
effectively carrying out its functions.

6
Garcetti significantly alters the judicial

approach to public employee First Amendment claims. It creates a threshold
requirement: Before reaching the established balancing test for potential First

Amendment protection, the employee's speech must be made in the capacity of
a citizen and not in the capacity of an employee speaking pursuant to the

employee' s official duties.
7
This threshold test must be met regardless of whether

the speech touches on a matter of public concern.

Part I of this Note briefly reviews several key Supreme Court holdings
respecting First Amendment protections afforded to public employee speech prior
to Garcetti. Part II examines the Garcetti decision and the likely First

Amendment rights of public employees following this decision. Part in explores
lower courts' early applications of Garcetti, including courts' disparate treatment

of employee speech made privately versus publicly, reasoning for broadly or
narrowly applying Garcetti, and approaches for determining what constitutes an

employee's official duties. Part IV addresses policy concerns stemming from

Garcetti, including the need for continued judicial involvement to resolve the

factual disputes involved in defining an employee's official duties, and the

detrimental impact on society's access to informed commentary on matters of

public concern resulting from this wide-sweeping exclusion of speech from

constitutional protection. The Note concludes that courts applying Garcetti
should narrowly define the scope of an employee's official duties so as to

minimize unjustified interference with the constitutional rights of public

employees when commenting on matters of public concern.

I. Brief Overview of First Amendment Rights of
Public Employees Prior to Garcetti

The Court in Garcetti presented the issue as "whether the First Amendment
protects a government employee from discipline based on speech made pursuant
to the employee's official duties."

8
Analysis of constitutional protections

afforded to public employees for their speech has routinely commenced with a
discussion of the foundational free speech principles set forth by the Court in

Pickering v. Board ofEducation.
9

In Pickering, a teacher was fired for writing

a letter to a local newspaper criticizing the school board's handling of efforts to

5. See Marni M. Zack, Note, Public Employee Free Speech: The Policy Reasons for

Rejecting a Per Se Rule Precluding Speech Rights, 46 B.C. L. REV. 893, 901-03 (2005).

6. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

7. Garcetti, 126 S. Ct. at 1960. The Tenth Circuit Court of Appeals characterized this

threshold requirement for First Amendment protection as a "heavy barrier erected by the Supreme

Court." Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1331 (10th Cir. 2007).

8. Garcetti, 126 S. Ct. at 1955.

9. See 391 U.S. 563 (1968).



2008] GARCETTI V. CEBALLOS 189

raise new revenues for the school and the board's allocation of financial resources
between school programs.

10 The Court held that "absent proof of false statements
knowingly or recklessly made by him, a teacher's exercise of his right to speak
on issues of public importance may not furnish the basis for his dismissal from
public employment."

11
The Court additionally reasoned that the "problem in any

case is to arrive at a balance between the interests of the teacher, as a citizen, in

commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through

its employees."
12

After balancing the interests, the Court recognized the "interest

of the school administration in limiting teachers' opportunities to contribute to

public debate is not significantly greater than its interest in limiting a similar

contribution by any member of the general public." 13 Additionally, the Court
noted:

Teachers are, as a class, the members of a community most likely to have
informed and definite opinions as to how funds allotted to the operations
of the schools should be spent. Accordingly, it is essential that they be

able to speak out freely on such questions without fear of retaliatory

dismissal.
14

Thus, the Court recognized that the specialized knowledge and expertise public

employees acquire through their employment represent an important contribution

to societal discourse, the expression of which should not be subject to employer

retaliation.

The Supreme Court further clarified the First Amendment rights of public
employees in Givhan v. Western Line Consolidated School District,

15
in which

the Court ruled that a teacher was not categorically denied First Amendment
protection for speech made privately containing allegations that school policies
and practices were racially discriminatory.

16 The Court held that its previous
decisions "do not support the conclusion that a public employee forfeits his

protection against governmental abridgment of freedom of speech if he decides

10. Id. at 564-66.

11. Id. at 574 (footnote omitted).

12. Id. at 568. The Court noted numerous considerations that might affect the outcome of

the balancing test, including, but not limited to, whether the statements (1) were directed to any

specific person with whom the speaker would normally be in contact during daily performance of
employment duties, (2) involved issues respecting maintaining discipline by supervisors or

harmony between coworkers, (3) were made by a speaker whose "personal loyalty and confidence"

can persuasively be tied to the proper functioning of the employment relationship, (4) interfered

with the speaker's performance of daily job duties, and (5) interfered with the operation of the

employer. Id. at 569-70, 572-73.

13. Mat 573.
14. Id. at 572.

15. 439 U.S. 410 (1979).

16. Id. at 412-13.



1 90 INDIANA LAW REVIEW [Vol. 41:187

to express his views privately rather than publicly."
17

In Connick v. Myers, the Court reaffirmed Pickering by stating that a "public

employee does not relinquish First Amendment rights to comment on matters of
public interest by virtue of government employment,"

18
but acknowledged that

the "State's interests as an employer in regulating the speech of its employees

'differ significantly from those it possesses in connection with regulation of the

speech of the citizenry in general.'"
19

At issue in Connick was the discharge of

an assistant district attorney who, in response to a proposed transfer to a different

division, distributed an in-office questionnaire soliciting other employees' views

on issues such as office policies and morale, confidence in supervisors, the

employee grievance process, and perceived pressure to work on political
campaigns.

20

The Connick Court made clear that the Pickering balancing test focused on
the rights of public employees when commenting on matters of public concern
and acknowledged that the functioning of government operations would be

impaired if "every employment decision became a constitutional matter."
21 As

such, the Court held that First Amendment protections are implicated only when
a public employee speaks as a citizen on a matter of public concern and not when
an employee speaks on a matter of personal interest.

22 The Court expressed that
whether speech addresses a matter of public concern is "determined by the

content, form, and context of a given statement, as revealed by the whole

record."
23 The Court determined that with the exception of one question on

Myers' questionnaire, the content of the questionnaire did not address a matter

of public concern; therefore, it was not entitled to First Amendment protection. 24

Further, the Court addressed the relationship between a public employee's

speech and the job responsibilities of that employee in Rankin v. McPherson.
25

McPherson was a deputy constable in the county constable's office who
performed solely administrative functions.

26
McPherson was terminated after

being overheard saying, in response to a failed assassination attempt on the

President of the United States, "'if they go for him again, I hope they get him.'"
27

The Supreme Court determined McPherson' s speech addressed a matter of public

17. Id. at 414.

18. Connick v. Myers, 461 U.S. 138, 140 (1983).

19. Id. (quoting Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968)).

20. Id. at 140-41.

21. Id. at 143.

22. Id. at 147.

23. Id. at 147-48.

24. Id. at 148 (finding that the questionnaire inquiry regarding whether employees felt

pressure to work on political campaigns was a matter of public concern, but ultimately balancing

the interests on that sole inquiry in favor of the employer).

25. 483 U.S. 378(1987).

26. Id. at 380-81 (noting that all employees in the constable's office had the job title of

deputy constable regardless of their employment responsibilities and duties within the office).

27. Id. at 381-82.



2008] GARCETTI V. CEBALLOS 191

concern because McPherson's comment was made in the context of a discussion
of the President's policies and the recent assassination attempt.

28 The Court's
application ofPickering balancing included weighing the administrative functions

McPherson was actually required to perform and the interests of the state in the

efficient functioning of the governmental office.
29

The balancing in this case
demonstrated that the interests involved in preserving First Amendment rights for
private speech on a matter of public concern outweighed the government's

interest in firing McPherson for such speech.
30

n. Garcetti v. Ceballos

Richard Ceballos was a deputy district attorney for the Los Angeles County

District Attorney's office and was contacted by a defense attorney who alleged
that an affidavit in a pending criminal matter contained misrepresentations.

31

Ceballos investigated the allegations and determined that the affidavit was

inaccurate.
32 He brought the matter to his superiors' attention and prepared a

memorandum recommending disposition of the case on the basis of the affidavit
inaccuracies.

33 A heated exchange occurred during a meeting with superiors and
others about the affidavit allegations, and Ceballos was openly criticized during

the meeting.
34

The case proceeded to prosecution despite Ceballos'

s

recommendations, and he was subsequently called by the defense to testify with

respect to the affidavit inaccuracies.
35

Ceballos alleged that following his

handling of the case, his employers retaliated against him by reassigning him to
another position, transferring him to a different courthouse, and denying him a
promotion.

36

Ceballos filed a claim in district court under 42 U.S.C. § 1983, alleging

employer retaliation for employee speech in violation of the First and Fourteenth

Amendments, and the court granted the defendants' motion for summary
judgment.

37
Relying on the Pickering/Connick test, the Ninth Circuit Court of

Appeals found that Ceballos' s memorandum alleging affidavit inaccuracies and

28. Mat 386.
29. Id. at 389-92 (finding persuasive that Rankin's formal job description involved limited

actual or potential involvement with law enforcement).

30. Id. at 390, 392.

31. Garcetti v. Ceballos, 126 S. Ct. 1951, 1955 (2006).

32. Id. Ceballos believed the affidavit mischaracterized a separate roadway as a long

driveway, and he doubted the affidavit's accuracy regarding tire tracks on the road because the

road's composition prevented tire tracks. Id.

33. Id. at 1955-56.

34. Id. at 1956.

35. Id.

36. Id.

37. Ceballos v. Garcetti, No. CV001 1 106AHMAJWX, 2002 WL 34098285, at *2, *4-5 (CD.
Cal. Jan. 30, 2002) (unpublished), rev'd, 361 F.3d 1168 (9th Cir. 2004), rev'd, 126 S. Ct. 1951

(2006).



1 92 INDIANA LAW REVIEW [Vol. 41:187

government misconduct involved a matter of public concern and was protected

by the First Amendment.
38 The court found that public employees' freedom to

speak on matters of public concern "is important to the orderly functioning of the

democratic process, because public employees, by virtue of their access to

information and experience regarding the operations, conduct, and policies of

government agencies and officials, 'are positioned uniquely to contribute to the

debate on matters of public concern.'"
39 As such, the court forcefully cautioned:

Not only our own precedent, but sound reason, Supreme Court doctrine,
and the weight of authority in other circuits support our rejection of a per

se rule that the First Amendment does not protect a public employee
simply because he expresses his views in a report to his supervisors or in

the performance of his other job-related obligations.
40

However, the United States Supreme Court reversed the Ninth Circuit,
finding the controlling factor to be that Ceballos's memorandum was written
pursuant to his official duties as a calendar deputy.

41
The Court established a

bright-line rule that "when public employees make statements 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."
42

The Court explained that " [restricting speech that owes
its existence to a public employee's professional responsibilities does not infringe

any liberties the employee might have enjoyed as a private citizen."
43

Rather, the

restriction "reflects the exercise of employer control over what the employer itself

has commissioned or created."
44

The Court was careful to note two factors that were not dispositive in this
case. First, consistent with the precedents set forth in Givhan and Rankin, the

Court stated that it was not controlling that Ceballos's speech occurred privately,

rather than publicly, as First Amendment protection may be available in some
instances for speech made privately at work.

45
Second, it was also not controlling

that Ceballos's memorandum concerned the subject matter of his employment,
as First Amendment protection may be available for some speech related to a
speaker's job.

46
Rather, the critical factor was that Ceballos wrote the

memorandum as part of his official duties as a calendar deputy and was fulfilling

38. Ceballos v. Garcetti, 361 F.3d 1 168, 1 180 (9th Cir. 2004), rev'd, 126 S. Ct. 1951 (2006).

39. Id. at 1 175 (quoting Weeks v. Bayer, 246 F.3d 1231, 1235 (9th Cir. 2001)).

40. Id. at 1178.

41. Garcetti, 126 S. Ct. at 1957, 1960.

42. Id. at 1960.

43. Id. The Court clarified by stating "[w]hen a public employee speaks pursuant to

employment responsibilities . . . there is no relevant analogue to speech by citizens who are not

government employees." Id. at 1961.

44. Id. at 1960.

45. Id. at 1959.

46. Id. The Court cited Pickering as support for this proposition, noting that the Pickering

principles apply to numerous other categories of public employees in addition to teachers. Id.



2008] GARCETT1 V. CEBALLOS 193

the employment functions that he was hired to perform.
47

The Court acknowledged its prior decisions recognized the value to a
democratic society of public employees' commentary on matters of public

concern, noting both the interests of the speaker in disseminating the information

and the interests of the public in obtaining the information.
48

However, the Court

maintained that a public employee, by virtue of entering government service,

must be subject to certain restraints on freedoms that are freely enjoyed by non-

public employees.
49

Specifically, certain limitations on public employees' First

Amendment rights are necessary, according to the Court, to ensure the efficient
functioning of the individual employee's governmental unit and to prevent

employees from "'constitutionaliz[ing] the employee grievance.'"
50

Three Justices wrote dissenting opinions in Garcetti, sharply calling into

question many aspects of the majority's reasoning. First, Justice Stevens's
dissent advocated that constitutional protection should sometimes be available for

government employees who speak out pursuant to their official job duties, rather
than never available.

51
Justice Stevens reasoned that speech may merely be

unwanted or unwelcome by the employer because it exposes information
regarding the functioning of the governmental unit that the employer does not

want anyone to discover.
52

Second, Justice Souter's dissenting opinion, in which Justices Stevens and

Ginsburg joined, also advocated against a categorical exclusion from First

Amendment protection for public employee speech made pursuant to official
duties, especially in cases of an employer's "official wrongdoing and threats to

health and safety."
53

Justice Souter argued that the majority drew an arbitrary line

without adequate justification for such a distinction and advised adjusting the

Pickering!Connick balancing test to address the majority' s concern for promoting

the efficient functioning of the government unit.
54

Such an adjustment would

require that speech be "on a matter of unusual importance and satisf[y] high

standards of responsibility" in the manner of communication to be eligible for

First Amendment protection.55

Third, Justice Breyer also dissented, finding the Garcetti exclusion from First

47. Id. at 1959-60.

48. Id. at 1959.

49. Id. at 1958.

50. Id. at 1958-59 (quoting Connick v. Myers, 461 U.S. 138, 154 (1983)). "Refusing to

recognize First Amendment claims based on government employees' work product does not

prevent them from participating in public debate. The employees retain the prospect of

constitutional protection for their contributions to the civic discourse." Id. at 1960.

51. Id. at 1962 (Stevens, J., dissenting).

52. Id.

53. Id. at 1963 (Souter, J., dissenting).

54. Id. at 1965, 1967.

55. Id. at 1967 (noting that "only comment[s] on official dishonesty, deliberately

unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in

an employee's favor").



194 INDIANA LAW REVIEW [Vol. 41 : 187

Amendment protection "too absolute."56 Justice Breyer found relevant that
Ceballos's speech was governed by the cannons of the legal profession and
additionally that Ceballos, as a deputy prosecutor, had certain constitutional

disclosure obligations respecting the government's possession of exculpatory

evidence.
57

Therefore, Justice Breyer advocated applying the Pickering!Connick

balancing test in those limited circumstances where public employee speech is

governed by both professional cannons and constitutional obligations.
58

III. Preliminary Interpretations of "Official Duties" Under Garcetti

The Garcetti Court specifically refrained from "articulating] a
comprehensive framework for defining the scope of an employee's duties in cases

where there is room for serious debate."59 Instead, the Court instructed that the
appropriate inquiry is a "practical one," involving assessment of what "duties an

employee actually is expected to perform" and acknowledging that job

descriptions often do not accurately reflect the duties with which an employee is

actually tasked.
60

Without having occasion to provide specific guidance as to

what constitutes an employee's official job duties, lower courts must find an

appropriate standard by which to measure whether Garcetti applies to the speech

at issue. This task has been met with varying approaches as lower courts grapple

with Garcetti and search for a consistent and reliable framework with which to

assess whether the speech at issue was made pursuant to an employee's official
duties.

While nearly all circuit courts of appeals have already cited to Garcetti in at

least limited fashion, as of the time of writing of this Note, the Third, Fifth, Sixth,

Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits have each engaged in

a thorough analysis of Garcetti when determining whether speech was made
pursuant to an employee's official duties. The sixteen decisions by the circuit
courts of appeals that, at the time of writing of this Note, have fully explored this

issue, have overwhelmingly interpreted Garcetti broadly enough to preclude all

but five plaintiffs' First Amendment claims.61 This strong initial trend by circuit

56. Id. at 1974 (Breyer, J., dissenting).

57. Id.

58. Id. at 1975.

59. Id. at 1961 (majority opinion). Ceballos did not dispute that he wrote the memo pursuant

to his calendar deputy duties. Id. at 1960. The district court in Ceballos v. Garcetti found the fact

that Ceballos's memo requested permission to dismiss the charges against the defendants supported

a determination that the memo was written as part of Ceballos's employment duties because

Ceballos acknowledged the need for his superiors' permission. Ceballos v. Garcetti, No.

CV001 1 106AHMAJWX, 2002 WL 34098285, at *6 n.5 (CD. Cal. Jan. 30, 2002) (unpublished),
rev'd, 361 F.3d 1 168 (9th Cir. 2004), rev'd, 126 S. Ct. 1951 (2006).

60. Garcetti, 126 S. Ct. at 1961-62 (rejecting any attempt by employers to merely create

overly broad job descriptions to widen the speech subject to the Garcetti exclusion from First

Amendment protection).

61. See Fairley v. Fermaint, 482 F.3d 897, 902 (7th Cir. 2007) (noting that Garcetti does not



2008] GARCETT1 V. CEBALLOS 195

courts of appeals to find in favor of public employers in such cases may be due,
in part, to virtually irrefutable evidence and deposition testimony by employees

admitting the speech at issue was made pursuant to their employment duties.62

The drastic shift in First Amendment protections afforded to public employees
significantly benefited public employers who were already involved in litigation
when Garcetti was issued and before plaintiffs became aware that their official
duties were the threshold inquiry determining the constitutional protection

afforded to their speech. The district court in Ceballos v. Garcetti noted Ceballos
had, in fact, admitted that the disposition memo, which formed the core of his
First Amendment claim, was written pursuant to his official duties as a
prosecutor.

63 More recently, for example, the Eighth Circuit found that a letter
written by a school psychologist clearly demonstrated the employee wrote the

letter pursuant to official job duties and not as a public citizen when the letter
closed with the statement, "T consider any time I spend addressing this matter
with you or the agency to be services I am giving the state as a consultant.'"64

Following Garcetti, defendants will have a more difficult time demonstrating

speech was made pursuant to official duties. Plaintiffs will justifiably respond to
Garcetti through attempts to preserve their First Amendment protections by
characterizing speech as that of a concerned citizen rather than as speech required

apply to testimony given by county jail guards in inmates' suits because assisting prisoners in their

litigation does not fall within the guards' official duties); Casey v. W. Las Vegas Indep. Sch. Dist.,

473 F.3d 1323, 1332-33 (10th Cir. 2007) (holding that statements made by a school superintendent

to the Attorney General regarding the school board's alleged violations of the New Mexico Open
Meetings Act survive GarcettVs threshold requirement); Freitag v. Ayers, 468 F.3d 528, 544-46

(9th Cir. 2006) (finding, with one possible exception, no constitutional protection available for a

female corrections officer's internal reports alleging sexually hostile inmate conduct and the

prison's failure to rectify the situation, but holding that similar complaints made externally to a

senator and the inspector general were made in the capacity of a citizen "exposing] such official

malfeasance to broader scrutiny"); Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006) (finding

Garcetti inapposite when a deputy sheriffs comments publicly criticizing the sheriff were made

by the speaker in the capacity of a union representative, rather than pursuant to the official duties

of a deputy sheriff); Hill v. Borough of Kutztown, 455 F.3d 225, 242-43 (3rd Cir. 2006) (finding

as a matter of law, that a borough manager was speaking pursuant to official duties when reporting

complaints about the borough mayor to the borough council, but reversing the district court's grant

ofa motion to dismiss a First Amendment retaliation claim for additional speech that could possibly

have been made in the capacity of a citizen).

62. See Battle v. Bd. of Regents for Ga., 468 F.3d 755, 761 (1 1th Cir. 2006) (finding that a

federal financial aid counselor's retaliation claim failed under Garcetti because she admitted in her

deposition testimony that she had an employment duty to report the discovery of mismanagement

or fraud in the financial aid records).

63. Ceballos v. Garcetti, No. CV001 1 106AHMAJWX, 2002 WL 34098285, at *6 (CD. Cal.
Jan. 30, 2002) (unpublished), rev'd, 361 F.3d 1 168 (9th Cir. 2004), rev'd, 126 S. Ct. 1951 (2006).

64. Bailey v. Dep't of Elementary and Secondary Educ, 451 F.3d 514, 520 (8th Cir. 2006).



1 96 INDIANA LAW REVIEW [Vol. 4 1 : 1 87

under official employment duties.
65

A. Broad Interpretations of the Reach <?/ Garcetti

The Seventh Circuit has construed the holding of Garcetti to reach further
than public employee speech that is part and parcel of an employee's "core" job

functions, finding that standard to be too narrow following Garcetti.
66

While

Garcetti has predominantly been used to insulate the public employer from

employee First Amendment claims of retaliation when the employee speaks
pursuant to official duties, it has also been used by at least one circuit court of

appeals when the speech at issue was not made pursuant to the employee's
official duties.

67
The Seventh Circuit in Piggee v. Carl Sandburg College6* cited

the underlying principles of Garcetti in explaining its reasoning in affirming that

a college could lawfully force a part-time cosmetology instructor to refrain from

speech involving her views on homosexuality, even though her speech did not

relate to her official job duties of instructing students in cosmetology.
69 The court

noted that while the Garcetti decision was "not directly relevant[,] ... it does
signal the Court's concern that courts give appropriate weight to the public

employer's interests."
70

As a practical matter, extending the principles of Garcetti to influence and
bear upon constitutional protections afforded to speech made in the capacity of
a citizen and not made pursuant to an employee's official duties would seem to
have far-reaching effects beyond those intended by the Supreme Court in
GarcettiJ

1

The Court in Garcetti acknowledged its prior decisions focused on the

65. See Casey, 473 F.3d at 1329-30 (finding the parties' "principal briefs filed before

Garcetti ... cut against the result they wish this Court to reach after Garcetti" and that the parties

have "swap[ped] positions to meet their respective litigation objectives"). The court noted that the

defendants originally argued that the plaintiff acted ultra vires when reporting alleged financial

eligibility violations to Head Start headquarters, while the plaintiff originally argued that she had

a "duty" to report the wrongdoing. Id. Following Garcetti, the defendants' reply brief argued that

the plaintiff was acting pursuant to her official duties as a superintendent or CEO of the Head Start
program when reporting the violations, while the plaintiff argued that the speech was made in the

capacity of a citizen. Id.

66. Spiegla v. Hull, 481 F.3d 961, 967 (7th Cir. 2007).

67. See Piggee v. Carl Sandburg Coll., 464 F.3d 667 (7th Cir. 2006).

68. 464F.3d667.

69. Id. at 668, 672.

70. Id. at 672. Cf. Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 480 (7th Cir.

2007) ("Our remark that Garcetti was 'not directly relevant' did not reflect doubt about the rule that

employers are entitled to control speech from an instructor to a student on college grounds during

working hours The speech to which the student (and the college) objected was not part of [the

plaintiffs] teaching duties.").

71. See Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) ("So long as employees are

speaking as citizens about matters of public concern, they must face only those speech restrictions

that are necessary for their employers to operate efficiently and effectively.").



2008] GARCETTI V. CEBALLOS 197

"dual role of the public employer as a provider of public services and as a

government entity operating under the constraints of the First Amendment."
72

However, in explaining the "theoretical underpinnings" of its First Amendment
decisions, the Court reaffirmed that "[e]mployees who make public statements
outside the course of performing their official duties retain some possibility of
First Amendment protection because that is the kind of activity engaged in by
citizens who do not work for the government."73 The decisions of the Court do
not prevent public employees from participation in public debate and civic

discourse, but do eliminate their First Amendment protection when their speech
is made "pursuant" to their official duties.

74

Following Garcetti, the possibility of First Amendment protection remains
for public employee speech made in an employee's capacity as a citizen and not
pursuant to an employee's official duties, subject to the outcome of the

Pickenng/Connick balancing test.
75 The Court identified the proper inquiry as

"whether the relevant government entity had an adequate justification for treating

the employee differently from any other member of the general public."76 As
described in Pickering, this analysis involves weighing the interests of the

employee in commenting on matters of public concern against the government

entity's need to efficiently run its operations.
77

Therefore, as advocated by the

Seventh Circuit in Piggee, if courts interpret Garcetti as signaling the Supreme

Court's "concern that courts give appropriate weight to the public employer's

interests,"
78
even in cases where the employee was speaking as a citizen, such a

broad interpretation of the reach of Garcetti has the potential to permanently tip

the Pickering/Connick balancing test in favor of the employer's interests

regardless of the weight of the employee's interests in commenting on a matter

of public concern. Garcetti was not intended to swallow up the Pickering

balancing test. Rather, the scope of Garcetti was specifically limited by the Court

to exclude "statements or complaints (such as those at issue in cases like

Pickering and Connick) that are made outside the duties of employment."
79

Perhaps the most expansive interpretation of the reach of Garcetti in

determining whether an employee's speech is made pursuant to official job duties
can be found in a recent opinion issued by the Tenth Circuit Court of Appeals.

80

In Green v. Board of County Commissioners, an employee of the county's
Juvenile Justice Center who worked as a drug-lab technician and a detention
officer, suspected that a drug test had produced a false positive result.

81
Green

72. Id. at 1959 (quoting Rankin v. McPherson, 483 U.S. 378, 384 (1987)).

73. Id. at 1961 (emphasis added).

74. Id. at 1960.

75. Id. at 1958.

76. Id.

77. Pickering v. Bd. of Educ, 391 U.S. 563, 568 (1968).

78. Piggee v. Carl Sandburg Coll., 464 F.3d 667, 672 (7th Cir. 2006).

79. Garcetti, 126 S. Ct. at 1961.

80. See Green v. Bd. of County Comm'rs, 472 F.3d 794 (10th Cir. 2007).

81. Id. at 796.



1 98 INDIANA LAW REVIEW [Vol. 41:187

had previously alerted her employers to the lack of a drug testing confirmation

protocol, but was not met with support for establishing any testing confirmation

policy.
82

Green took it upon herself to independently contact the testing

equipment manufacturer to discuss reliability issues and sent the sample in

question to an outside hospital for a confirmation test, which confirmed a false

positive result.
83

The court compared Green's speech with her written job description, finding
ultimately that the case was more similar to Garcetti and others decided in its

wake than to "activities undertaken by employees acting as citizens."
84 The court

reasoned that:

On the one hand, the speech and conduct at issue can be categorized
as activities undertaken in the course of Ms. Green's job. She had the

responsibility for collecting samples and testing them, and by extension,

making sure the tests were as accurate as possible .... She also had the

responsibility for communicating with clients and with third parties

regarding testing. Under this view, by making arrangements for the

confirmation test without consulting her supervisors, Ms. Green decided

to ignore her supervisors' instructions . . . and thereby properly should

be subject to discipline.

On the other hand, one could argue that Ms. Green was not a
policymaker and her job responsibilities focused on the logistics of

taking tests and keeping records, so she was not required to improve the

Center' s system by advocating for a confirmation policy or obtaining the

confirmation test. Under this view, by arranging for the confirmation test

to underline the validity of her previously expressed concerns, Ms. Green

was not doing the job she was hired to do, but was acting outside her

day-to-day job responsibilities for the public good.
85

In affirming the grant of summary judgment to the defendants on Green's First
Amendment claim, the court noted that the "unauthorized obtaining of the
confirmation test to prove her point[], inescapably invoke GarcettVs

admonishment that government employee's First Amendment rights do 'not
invest them with a right to perform their jobs however they see fit.'"

86

The Green decision raises two concerns. First, the court's analysis includes
two very plausible interpretations of how Green's communications could be
characterized; one interpretation affords her the possibility of constitutional

protection while the other precludes protection. Granting summary judgment
does not seem appropriate in this procedural posture, given that there appears to

be a genuine issue of material fact as to whether the speech at issue was in fact

made pursuant to Green's official duties.

82. Id.

83. Id.

84. Id. at 799-801.

85. Id at 800.

86. Id. at 801 (quoting Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006)).



2008] GARCETTI V. CEBALLOS 199

Second, the court seems to be merging the concepts of communications that

can subject a public employee to discipline for insubordination with concepts of

communications that do not maintain constitutional protection under Garcetti.

Certainly, an employer retains the right to discipline an employee for

insubordination; Garcetti confirms that "[supervisors must ensure that their

employees' official communications are accurate, demonstrate sound judgment,

and promote the employer's mission," and they have the "authority to take proper

corrective action."
87

However, Garcetti was addressing a situation where the

speech at issue was undisputedly made pursuant to official job duties. By
contrast, Green's speech was "unauthorized" by her employers, which seems to

be compelling evidence of insubordination, rather than speech characterized as

official government communications, as in Garcetti. As such, if this
unauthorized speech was not made pursuant to Green's official job duties, it is
properly addressed by weighing the interests under the Pickering/Connick test,

rather than by categorically stripping the speech of its constitutional protection.

B. Courts' Disparate Treatment ofPublic Versus Private Speech

While the Supreme Court held in Givhan that communications made by
public employees privately can be afforded First Amendment protection,88 early
application of Garcetti has led to a sharp distinction in constitutional protection

afforded to speech made privately versus publicly. The courts' disparate
treatment of speech made privately and speech made publicly seems in direct
conflict with Givhan*

9 As the Supreme Court noted in Garcetti, "[t]hat Ceballos
expressed his views inside his office, rather than publicly, is not dispositive[,]"

citing Givhan as support for that proposition.
90 The practical effect of the lower

courts' application of Garcetti in this manner is to encourage employees who are
considering speaking out about their official job duties to deviate from following

internally established reporting guidelines for fear that their speech will be subject

to the Garcetti exclusion from First Amendment protection. As cautioned by
Justice Stevens in his dissenting opinion in Garcetti, the majority opinion

encourages employees to air their grievances publicly rather than privately and

to ignore chain-of-command protocols.
91

Preliminary applications of Garcetti

bear out Justice Stevens's prediction; many courts have already held that speech

87. Garcetti, 126 S. Ct. at 1960-61.

88. Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 412-13 (1979).

89. See Ceballos v. Garcetti, 361 F.3d 1168, 1176 (9th Cir. 2004) ("To deprive public

employees of constitutional protection when they fulfill this employment obligation, while

affording them protection if they bypass their supervisors and take their tales, for profit or

otherwise, directly to a scandal sheet or to an internet political smut purveyor defies sound

reason."), rev'd, 126 S. Ct. 1951 (2006).

90. Garcetti, 126 S. Ct. at 1959.

91. Id. at 1963 (Stevens, J., dissenting) ("[I]t seems perverse to fashion a new rule that

provides employees with an incentive to voice their concerns publicly before talking frankly to their

superiors.").



200 INDIANA LAW REVIEW [Vol. 41:187

preserves constitutional protection when it is made to media outlets or to elected
officials because such speech is not made pursuant to official duties. Perhaps the
most striking evidence of a court basing constitutional protection, in part, on

whether employee speech was made publicly or privately can be found in
Green.

92 The court in Green found it persuasive that the plaintiff's speech at
issue did not involve the plaintiff "communicating with newspapers or her

legislators or performing some similar activity afforded citizens."
93 The

application of Garcetti should depend upon more than whether the employee's
speech was made to the media or to legislators. The message such an
interpretation sends to a public employee is that if the employee fears retaliation

from the employer for speech made pursuant to the employee' s official job duties,
then Garcetti can be circumvented if the employee makes enough noise. When
viewed in light of Garcetti' s foundational purpose of providing government

entities with a higher degree of control over employees' speech to better ensure

the "efficient provision of public services,"
94

the judicially-created incentive to

air grievances to the media tends to undermine the Court's declared purpose.

Numerous cases follow to demonstrate this principle.
In Freitag v. Ayers, the Ninth Circuit held that a female corrections officer

alleging sexual harassment by inmates was speaking as a citizen, outside of her

official job duties, when she contacted a state senator and the Office of the
Inspector General regarding the State' s "failure to perform its duties properly, and

specifically its failure to take corrective action to eliminate sexual harassment in

its workplace."
95

Similarly, in Benoit v. Board of Commissioners of the New
Orleans Levee District,

96
a federal district court held that the senior counsel for

the Board of Commissioners of the New Orleans Levee District was not acting
pursuant to his official duties when he sent letters to both Louisiana Governor
Kathleen Blanco and U.S. Senator David Vitter regarding misuse of time and

taxpayer money by the levee district officials in the months preceding Hurricane
Katrina.

97 The court noted that the plaintiff's speech was that of a "citizen
exposing misconduct and malfeasance" when he wrote the letters to Governor
Blanco and U.S. Senator Vitter, and that it was not part of his duties to provide

such information to the governor or the senator.
98

92. Green v. Bd. of County Comm'rs, 472 F.3d 794, 800 (10th Cir. 2007).

93. Id. Accord Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 n.2 (5th Cir. 2007)

(finding significant that the case was different from Pickering in that it did not involve a letter to

the local newspaper or school board).

94. Garcetti, 126 S. Ct. at 1958 (majority opinion). "Public employees . . . often occupy

trusted positions in society. When they speak out, they can express views that contravene

governmental policies or impair the proper performance of governmental functions." Id.

95. Freitag v. Ayers, 468 F.3d 528, 545-46 (9th Cir. 2006) (finding that plaintiffs "right to

complain both to an elected public official and to an independent state agency is guaranteed to any

citizen in a democratic society regardless of his status as a public employee").

96. 459 F. Supp. 2d 513 (E.D. La. 2006).

97. Mat 515.
98. Id. at 518; see also Sassi v. Lou-Gould, No. 05 Civ 10450(CLB), 2007 WL 635579, at



2008] GARCETTI V. CEBALLOS 201

By contrast, in Mills v. City ofEvansville, Indiana," a city police department
sergeant discussed with other officers her opposition to a proposed plan to

reallocate certain crime prevention officers to active duty.
100

In finding Garcetti

applicable to the plaintiffs speech, the Seventh Circuit characterized the speech

as "contributing to the formation and execution of official policy," specifically

noting that at the time of the speech the plaintiff was on duty, in the workplace,

and in uniform.
101

Applying similar reasoning, the Sixth Circuit in Haynes v. City

of Circleville, Ohio,
102

found that a police officer, who worked part time as a
handler in the police department canine unit, retained no constitutional protection

against employer retaliation for a memorandum written to his police chief
opposing cutbacks in training for canine handlers, which the plaintiff believed

would likely pose a risk of harm to the public.
103

In relying on Mills, the court in

Haynes explained that "[t]he fact that Haynes communicated solely to his
superior also indicates that he was speaking 'in [his] capacity as a public
employee contributing to the formation and execution of official policy,' not as

a member of the public writing a letter to the editor as in Pickering." 104

The critical question that emerges based on the circuit courts of appeals'

s

holdings in Mills and Haynes is whether the outcomes would have been different
had the plaintiffs not raised their concerns internally, but had voiced their

opinions in a more public forum, similar to the plaintiffs in Freitag and Benoit.
Specifically, Justice Stevens declared in his dissent the "notion that there is a

categorical difference between speaking as a citizen and speaking in the course

of one's employment is quite wrong" and further "it is senseless to let
constitutional protection for exactly the same words hinge on whether they fall
within a job description."

105
Here, in direct contradiction to Garcetti and Givhan,

many courts' interpretations of Garcetti seem to let constitutional protection for
exactly the same words hinge on whether the plaintiff chose to speak out publicly
rather than privately. The Garcetti opinion acknowledged this "perceived
anomaly" and suggested that government employers can avoid it by establishing

internal protocols and policies governing employee speech to "discourage

[employees] from concluding that the safest avenue of expression is to state their

views in public."
106

This recommendation serves to further limit the public

employee's options by providing employers with alternative grounds on which

*1, *3 (S.D.N.Y. Feb. 27, 2007) (noting a police chief was not acting within the scope of official

duties when writing public letters critical of police funding policies to the city council and

identifying himself as a '"resident taxpayer'").

99. 452 F.3d 646 (7th Cir. 2006).

100. Id. at 647.

101. Id. at 648.

102. 474 F.3d 357 (6th Cir. 2007).

103. Id. at 359-60.

104. Id. at 364 (quoting Mills, 452 F.3d at 646) (citation omitted) (emphasis added).

105. Garcetti v.Ceballos, 126 S.Ct. 1951, 1963 (2006) (Stevens, J., dissenting) (characterizing

the majority's opinion as "misguided").

106. Id. at 1961 (majority opinion).



202 INDIANA LAW REVIEW [Vol. 41:187

to base an employee's termination, namely, failure to follow employer-mandated

internal protocols governing employee speech.

C. Lower Court Approaches to Determining Official Duties

In navigating through post-Garcetti waters, district courts are forced to

establish their own framework for what constitutes a public employee's official
duties. One court observed that "[a]s comprehensive as Garcetti is, we are still
left without a standard or a guide to help us balance or maneuver through those

public statements that may be mixed, or rather disguised because the scope ofjob
responsibilities are not so manifest."

107
The district courts have placed emphasis

on a wide variety of factors in defining the scope of an employee's official duties,

often with conflicting and unpredictable results. The following illustrate a
number of noteworthy preliminary interpretations of what constitutes speech
pursuant to a public employee's official duties.

1. Job Relatedness Approach.—In Pittman v. Cuyahoga Valley Career
Center

,

m
while the court ultimately did not apply Garcetti to the speech at issue,

the court determined that Garcettfs analysis rests on "job relatedness."
109 The

court reasoned that if the speech was "required" by the employee's job, Garcetti

controls, precluding constitutional protection; if the speech is not categorized as

"specifically job-related," then the availability of constitutional protection for the

speech at issue is weighed by the Pickering/Connick balancing test.
110

The job relatedness approach advocated by the Pittman court misconstrues
the Court's limited guidance on what constitutes an employee's official duties.

The Court carefully crafted its holding as targeting public employees' speech
made "pursuant to their official duties." 111 The Pittman court instead based a
portion of its Garcetti analysis of available constitutional protections on job

relatedness.
112 A standard that broadly includes all job-related speech would be

over-inclusive because it would encompass speech falling well outside an

employee's official job duties. Other courts have identified the risk of widening

Garcetti to encompass all job related speech and have declined to do so.

Specifically, one court declined to "transform Garcetti into an impermeable rule

that all speech by governmental officials, no matter the facts presented, is fully

engulfed by their governmental duties" and expressly rejected applying Garcetti

as a "bright-line rule—an all or nothing determination—on an employee's speech

107. Jackson v. Jimino, No. 1:03-CV-722,2007WL 1893 11, at *1 6 (N.D.N.Y.Jan. 19,2007)

(noting the court's difficulty in determining whether the plaintiff was speaking pursuant to official

job duties resulting in a material issue of fact).

108. 451 F. Supp. 2d 905 (N.D. Ohio 2006).

109. Id. at 929.

110. Id.

111. Garcetti, 126 S. Ct. at 1960 (emphasis added).

1 12. Contra McLaughlin v. Pezzolla, No. 06-CV-00376, 2007 WL 676674, at *6 (N.D.N.Y.
Feb. 28, 2007) ("The fact that some of these matters may have been 'job related' does not mean,

a fortiori, that [a] claim is barred under Garcetti.").



2008] GARCETTI V. CEBALLOS 203

even if it tangentially concerns the official's employment."
1 13

The Supreme Court
specifically anticipated an interpretation based on job relatedness and reaffirmed

its prior holdings that the dispositive factor in Garcetti was not that the speech

related to Ceballos's job.
114

Rather, the Court recognized that the "First

Amendment protects some expressions related to the speaker's job." 115

2. Effect ofStatute.—Courts have also addressed the application of Garcetti
in cases involving statutes or federal guidelines imposing a legal duty upon public

employees. A number of courts have considered such statutory and regulatory
requirements as a determinative factor in finding that speech was made pursuant
to official duties. In Pagani v. Meriden Board ofEducation,

116
a teacher alleged

retaliatory employment action for filing a report with the Department of Children

and Families ("DCF") regarding a substitute teacher who showed middle school
students photographs of his vacation, including a photograph of himself posing

nude with two other nude females.
117

Although Pagani' s supervisor discouraged

him from reporting the incident to DCF, a Connecticut statute mandated reporting
suspected child abuse to DCF, and the school's faculty had previously received
training on statutory compliance.

118
The court found that when Pagani made the

report to DCF, he "understood he was doing so because, as an educator, he had
a duty to do so," and broadly held that reports made to DCF by teachers in
Connecticut are afforded no constitutional protection under Garcetti.

U9

Taking a similar approach, the Tenth Circuit Court of Appeals in Casey v.

West Las Vegas Independent School District
120

found the plaintiff acted within

her official job duties as school district superintendent and chief executive officer

of the school district's Head Start program when instructing a subordinate to
contact the Federal Head Start regional office to report the school district's
financial noncompliance with federal regulations.

121
The plaintiff acknowledged

awareness that failure to report financial irregularities in the program could result

in liability, but alleged that school board members repeatedly dismissed her
concerns regarding financial noncompliance, discouraging her from further

investigating the irregularities.
122

The Tenth Circuit cited civil and criminal

statutes subjecting individuals to liability for knowingly submitting false claims,

including imposing civil penalties, fines, and imprisonment.
123

The court was

113. Jackson v. Jimino, 506 F. Supp. 2d 105, 109 (N.D.N.Y. 2007).

1 14. Garcetti, 126 S. Ct. at 1960.

115. Id.

116. No. 3:05-CV-01 115 (JCH), 2006 WL 3791405 (D. Conn. Dec. 19,2006).
117. Mat*l-2.

118. Id. at*3.

119. Id. at H.

120. 473 F.3d 1323 (10th Cir. 2007).

121. Id. at 1329-30.

122. Id. at 1326, 1330. An investigation by the United States Department of Health and

Human Services ultimately revealed improper enrollment in the school's Head Start program and

required repayment of over five hundred thousand dollars in federal aid awards. Id. at 1326.

123. Id. at 1330 n.7.



204 INDIANA LAW REVIEW [Vol. 4 1 : 1 87

persuaded that, because federal law required such disclosure and the plaintiff

conceded that she was required to report noncompliance to federal authorities, the

plaintiff was acting pursuant to official duties rather than speaking as a citizen for

First Amendment purposes. 124

Extending Garcetti to categorically exclude all speech by a public employee

that can be tied to a statutory or regulatory duty reaches too far, placing the public

employee in an impossible position. The employee either remains silent to avoid
employer retaliation, thereby failing to comply with the applicable statute or

regulation, or the employee complies with the mandatory disclosure requirement

risking backlash from the employer, including possible termination or demotion.

Selecting either option is likely a losing proposition for the public employee when
Garcetti is interpreted so expansively.

125
Ceballos argued this issue to the Court

by identifying a federal regulation governing basic obligations of public

employees that mandates that federal "[e]mployees shall disclose waste, fraud,

abuse, and corruption to appropriate authorities."
126

Ceballos opposed adopting

a rule that could strip First Amendment protection from all federal employees for
compliance with this government regulation.

127

These conflicting obligations were present in Garcetti, prompting Justice

Breyer's recommendation that the Pickering/Connick balancing test be applied

when constitutional and professional cannons govern the employee's speech. 128

Similarly, where statutory or regulatory duties command disclosure, the employee
should not be penalized for compliance by being categorically stripped of

constitutional protection for the very speech that the government mandated.

Rather, in this circumstance, the interests of the parties should be weighed under

the Pickering/Connick balancing test.

3. Expected Duty Versus Actual Performance.—Some courts distinguish
whether Garcetti applies to public employee speech on the basis of what an

employee is actually performing versus what the employer expects the employee

to perform. A court might consider the employee's official duties to include

124. Id. at 1330-31. Accord Battle v. Bd. of Regents for Ga., 468 F.3d 755, 761, 761 n.5 (1 1th

Cir. 2006) (citing Department of Education Guidelines compelling federal financial aid workers

to report suspected fraud to the Office of Inspector General or local law enforcement).

125. This problem has been characterized as catching a public employee '"on the horns of a

dilemma,'" likely resulting in the employee being "gored" regardless of the employee's selected

course of action. The Supreme Court, 2005 Term—Leading Cases, 120 Harv. L. Rev. 273, 279
(2006) (quoting BriefofAss'n ofDeputy Dist. Attorneys & Cal. Prosecutors Ass'n as Amici Curiae
in Support ofRespondent at 2, Garcetti v. Ceballos, 126S.Q. 1951 (2006) (No. 04-473), 2005 WL
1767121).

126. Brief for Respondent at 50, Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) (No. 04-473),

2005 WL 1801035 (quoting 5 C.F.R. § 2635.101(b)(ll) (2005)).
127. Id. (citing the existence of corresponding state and local reporting obligations).

128. Garcetti v. Ceballos, 126 S. Ct. 1951, 1975 (2006) (Breyer, J., dissenting) ("Where

professional and special constitutional obligations are both present, the need to protect the

employee's speech is augmented, the need for broad government authority to control that speech

is likely diminished, and administrable standards are quite likely available.")



2008] GARCETTI V. CEBALLOS 205

those duties the employer expects the employee to perform, not those duties the

employee is actually performing. For example, the court in Barclay v.

Michalsky
129

found Garcetti did not control when a nurse reported other nurses
were sleeping on the job and using excessive restraints on patients, even though

certain work rules technically imposed a requirement that employees report

behavior that endangers the welfare of others and report any rule violations.
130

The court found the following significant: the rules involved a general duty by

all employees, the plaintiff had not received special training on such rules or rule

violations, and the plaintiff alleged that attempts to report such work rule

violations were discouraged by superiors.
131

These facts proved persuasive to the

court that while there may have been an actual duty to report the misconduct,
such reporting was not expected of employees and the speech fell outside

Garcetti 's control.
132

Taking an opposite approach, the district court in D'Angelo v. School Board

of Polk County, Florida,
133

appeared to rest its decision on the duties actually

performed and engaged in by a school principal rather than the duties the

employer expected the principal to perform.
134

D'Angelo was hired as a high

school principal of a school scoring poorly on standardized tests, having crime

and drug problems, and lagging behind the performance of other area high

schools.
135

After implementing drastic changes with marked success, D'Angelo

ultimately determined that pursuing charter school conversion was necessary to

improve the quality of education available to the students.
136

This conversion

effort was met with opposition by the school board, allegedly resulting in

D'Angelo' s termination.
137

129. 451 F. Supp. 2d 386 (D. Conn. 2006).

130. Id. at 395-96.

131. Id. ("Defendants have not demonstrated that reporting potential work rule violations

relating to patient care was particularly within the province of plaintiff s professional duties, more

so than that of any other . . . employees."); see also Burke v. Nittman, No. 05-cv-01766-WYD-

PAC, 2007 WL 69 1206, at * 1 , *5 (D. Colo. Mar. 2, 2007) (finding unpersuasive under Garcetti that
a security officer for a youth corrections facility may have had a "general" duty to report staff

members' unethical behavior); Abbatiello v. County ofKauai, No. 04-00562 SOM/BMK, 2007 WL
473680, at *10 (D. Haw. Feb. 7, 2007) (noting that the mere existence of police department

standards of conduct mandating certain types of officer reporting is not dispositive in establishing

an officer's official duties because an officer may not actually be expected to perform such

reporting functions).

132. Barclay, 451 F. Supp. 2d at 395-96.

133. Transcript of Rule 50 Motion and Judge's Findings, D'Angelo v. Sch. Bd. of Polk

County, Fla., No. 8:05-CV-563-T-26TMB (M.D. Fla. June 15, 2006), aff'd, 497 F.3d 1203 (1 1th

Cir. 2007).

134. Id. at 39-40.

135. Initial Brief of Appellant at 2-3, D'Angelo, 497 F.3d 1203 (11th Cir. 2007) (No. 06-

13582), 2006 WL 2840509.
136. Transcript of Rule 50 Motion and Judge's Findings, supra note 133, at 10.

137. Initial Brief of Appellant, supra note 135, at 9, 11-13.



206 INDIANA LAW REVIEW [Vol. 4 1 : 1 87

At trial, D'Angelo indicated his primary duty as principal was to do whatever

was required for the students.
138

Broadly interpreting Garcetti, a Florida district

court reluctantly granted the defendant's Rule 50(a) motion for judgment as a

matter of law on D' Angelo' s First Amendment claim, determining that Garcetti
mandated a finding that D'Angelo was performing his official duties when he
pursued converting the public high school into a charter school.

139
The court was

not persuaded D' Angelo was acting outside of the scope of his official duties

when pursuing charter conversion regardless of evidence that the school board
strongly opposed charter school conversion and, ironically, that succeeding in a

conversion would ultimately sever D'Angelo' s employment relationship with the

school board.
140

The court considered the conversion to be "part and parcel of his
official duties," finding persuasive that the legislature designated the principal as

one of the few parties that could seek conversion.
141

138. Id. at 9 (noting D'Angelo's trial testimony stressing that a principal's duty is to help

students succeed in any way possible). D'Angelo argued that he was not required to pursue charter

status and that his lengthyjob description involved school management tasks and generally meeting

students' needs. Id. at 6. Specific duties included "developing educational programs, evaluating

personnel, conferring with teachers, students, and parents, requisitioning supplies, and planning and

monitoring the budget." Id.

139. Transcript ofRule 50 Motion and Judge's Findings, supra note 133, at 39-42 (explaining

Judge Lazzara's reluctance to grant the defendant's motion as defendant's actions were "morally

outrageous" and "unconscionable," but granting the motion was required under Garcetti). Judge

Lazzara apologized to the plaintiff for his decision, calling the remedy available to the plaintiff

"hollow" based on Garcetti' s holding. Id. at 42. Further, Judge Lazzara encouraged the plaintiff

to appeal the decision, stating he "hope[s] the Eleventh Circuit reverses [him] and says [he was]

wrong." Id.

140. Id. at 27.

141

.

Id. at 39-40. Plaintiff argued that a mere grant of statutory authority to pursue charter

status does not translate into an official duty under Garcetti. Initial Brief of Appellant, supra note

135, at 13.

Following the writing of this Note, the Eleventh Circuit Court of Appeals affirmed the district

court's decision in this case. D'Angelo v. Sch. Bd. ofPolk County, Fla., 497 F.3d 1203, 1206 (11th

Cir. 2007). The Eleventh Circuit found that D' Angelo did not speak as a citizen for First

Amendment purposes for at least two reasons. Id. at 1210. First, the court identified that, under

Florida statute, only certain parties, including school boards, principals, teachers, parents, and the

school advisory council, were granted the authority to apply for charter conversion. Id. Having

no evidence that D' Angelo was a parent or a teacher, the court determined that his attempts to

convert the school to charter status must have been performed in his capacity as principal. Id.

Second, the court relied on D'Angelo's own admission that his efforts to convert to charter status

were performed in fulfillment of his professional duties. Id. Although the court acknowledged that

D'Angelo was not expressly assigned the duty of pursuing charter conversion, it found persuasive

that he admitted pursing charter conversion to "'explore any and all possibilities to improve the

quality of education at [his school],' which was one of his listed duties and he described as his

'number one duty' in his 'job as a principal.'" Id. (citing Battle v. Bd. of Regents for Ga., 468 F.3d

755, 761 (1 1th Cir. 2006)). The court was not persuaded that these statements regarding his duty



2008] GARCETTI V. CEBALLOS 207

As evidenced in D 'Angelo, drawing a clear constitutional distinction between
speech made pursuant to employment duties an employee was expected to
perform and speech made pursuant to what the employee was actually performing
seems a somewhat arbitrary place to make such a critical assessment. If
D' Angelo was not performing what he was expected to perform by the school

board, he was arguably acting outside of the scope of his official duties by

pursuing the charter school conversion. Certainly the principal was not, in the

language of Garcetti, "expected to perform" and pursue charter school conversion

as part of his official duties as evidenced by the fact that this course of action

conflicted with the school board's objectives, but it is what he actually

performed. However, the district court broadly held he was acting pursuant to his

official duties based on D'Angelo' s sense of duty to "do[] the best he could for

the students" and make changes to improve the school.
142

Such differentiations

do not appear to adhere to the practical inquiry recommended in Garcetti. Rather,
distinctions in constitutional protections afforded to speech, made strictly on the
basis of expected duties versus actual duties are problematic because of the

dynamic nature of many employment relationships, ultimately rendering such
distinctions impractical.

As discussed, under Garcetti a court's inquiry into what constitutes official
duties is a "practical one" and should focus on the duties an employee is actually

"expected to perform."
143

Although dicta in Garcetti rejects any effort by

employers to create overly-broad job descriptions so as to preclude as much
employee speech as possible from First Amendment protection, 144 employers
could conceivably craft vague or overly-inclusive job descriptions in an attempt

to tie as much employee speech as possible to official job duties. Justice Souter
envisions that the "government may well try to limit the English teacher's options
by . . . investing them with a general obligation to ensure the sound

administration of the school."
145 As a tangible example, consider also that in

D'Angelo, the principal expansively described his primary responsibility as a
duty, generally, to do whatever possible for the success of the students. Such a

broad job duty could easily be inserted by employers into future principals'

official job descriptions to further insulate employers from liability for retaliatory

employment actions resulting from employee speech tied to this general duty.

The range of factors and considerations that lower courts have utilized to
define a public employee's official duties demonstrates the difficulty involved in

properly applying the bright-line rule announced in Garcetti to vastly different

factual scenarios. Garcetti is an anomaly, in that Ceballos's speech was

undisputedly made pursuant to his official duties as a calendar deputy. This type
of definiteness with respect to official duties will not likely be found in the

to pursue charter status only reflected D'Angelo' s "moral obligations as a human being and not his

responsibilities as a principal." Id.

142. Initial Brief of Appellant, supra note 135, at 13.

143. Garcetti v. Ceballos, 126 S. Ct. 1951, 1961-62 (2006) (majority opinion).

144. Id. at 1961.

145. Id. at 1965 n.2 (Souter, J., dissenting).



208 INDIANA LAW REVIEW [Vol. 41:187

majority of First Amendment claims involving public employer retaliation for
employee speech. Accordingly, the facts of Garcetti cannot be easily analogized

to assist courts in determining whether the speech at issue overcomes Garcettfs

threshold requirement. Further, public employees are left with uncertainty as to

their constitutional free speech rights, and their reliance interests are damaged as
a result of this unpredictability. Garcetti establishes a new pronouncement of law
that profoundly affects a core, constitutionally-protected right without providing

sufficient guidance on how to appropriately apply this requirement to varied
factual situations.

IV. Policy Concerns Arising from Garcetti

The effective operation of government entities undoubtedly is of paramount
importance to a properly functioning society. Justice Breyer recognized that the

"efficient administration of legislatively authorized programs reflects the

constitutional need effectively to implement the public's democratically

determined will."
146

However, while Garcetti identified this goal as the

paramount reason behind its holding, other equally important policy

considerations have arisen resulting from the removal of citizen status from

public employees speaking pursuant to official job duties.

The Garcetti Court sought to avoid continued judicial involvement in a vast
majority of the constitutional claims brought by public employees through its new
pronouncement of law in Garcetti. The Court supported its holding, in part, by
stating to "hold otherwise would be to demand permanent judicial intervention
in the conduct of governmental operations to a degree inconsistent with sound

principles of federalism and the separation ofpowers."
147

Following Garcetti, the

determination of whether a public employee's speech is made in the capacity of
a citizen on a matter of public concern remains a question of law for the court.

148

However, the effect of Garcetti on courts' involvement has resulted in numerous

disputes of material fact centered on the issue of what actually constitutes a public

employee's official duties.
149 As Justice Souter aptly predicted in his dissent, the

majority's holding in Garcetti "engenders] litigation to decide which stated

duties were actual and which were merely formal."
150

Therefore, rather than

having the intended effect of removing public employees' First Amendment
claims from judicial purview, the courts' role in such constitutional claims has

merely shifted.

146. Id. at 1973 (Breyer, J., dissenting).

147. Id. at 1961 (majority opinion).

148. McGee v. Pub. Water Supply, 471 F.3d 918, 920 (8th Cir. 2006).

149. See Kodrea v. City of Kokomo, Ind., 458 F. Supp. 2d 857, 868 (S.D. Ind. 2006) (denying

defendants' motion for summary judgment because of factual issues surrounding the scope of

plaintiff sjob responsibilities); Shewbridge v. El Dorado Irrigation Dist., No. CIV. S-05-0740 FCD
EFB, 2006 WL 3741878, at *7 (E.D. Cal. Dec. 19, 2006) (identifying factual issues regarding
plaintiff s job responsibilities that precluded granting defendant's motion for summary judgment).

150. Garcetti, 126 S. Ct. at 1965 n.2 (Souter, J., dissenting).



2008] GARCETTI V. CEBALLOS 209

The Pickering Court properly assessed the difficulty in establishing a bright-
line rule governing First Amendment protection for public employee speech. Its
previously articulated principle cautioned:

Because of the enormous variety of fact situations in which critical

statements by teachers and other public employees may be thought by
their superiors, against whom the statements are directed to furnish
grounds for dismissal, we do not deem it either appropriate or feasible to
attempt to lay down a general standard against which all such statements
may be judged. 151

The principle of addressing these issues on a case-by-case basis reflected a high
regard for the preservation of public employee free speech rights. By adopting
this view, the Court essentially acknowledged that First Amendment claims are
inherently fact sensitive and are thus better suited to a balancing of the interests

based on the individual facts of each case than to a per se rule governing public

employee First Amendment protection.
Garcetti conflicts with this previously articulated principle, and its per se rule

draws an arbitrary line by holding that public employees are not citizens when
they speak pursuant to their official job duties. The Fifth Circuit Court of
Appeals explains Garcetti as shifting the "focus from the content of the speech

to the role the speaker occupied when he said it." 152 This new rule—this judicial
line in the sand—does a disservice to society by categorically limiting society's
access to critical information on topics of public interest and concern. The Fifth
Circuit expressed the current judicial approach as holding "[e]ven if the speech

is of great social importance, it is not protected by the First Amendment so long
as it was made pursuant to the worker's official duties." 153 Justice Souter
characterized the result as protecting a Givhan schoolteacher who speaks to a
principal regarding school hiring policies, but not protecting a school personnel

officer whose speech addresses the principal's failure to hire minority

candidates.
154

Ceballos suggested the problematic effects of the per se rule in

several scenarios:

Suppose, for example, that a Capitol Police officer patrols the Capitol

daily, looking for suspicious unattended packages, and every day she

files a report with her findings. One day, the officer discovers a package
containing a bomb; furthermore, after an investigation, she learns that a
fellow police officer planted it. She reports her findings and is

discharged. Similarly, imagine that a U.S. Customs Service employee

151. Pickering v. Bd. of Educ, 391 U.S. 563, 569 (1968); see also id. at 574 ("This Court has

also indicated, in more general terms, that statements by public officials on matters of public

concern must be accorded First Amendment protection despite the fact that the statements are

directed at their nominal superiors.").

152. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007).

153. Id.

154. Garcetti, 126 S. Ct. at 1965 (Souter, J., dissenting).



2 1 INDIANA LAW REVIEW [Vol. 41:187

learns that some of his colleagues have been accepting bribes from a
foreign entity, known to have ties to terrorist organizations, to ignore
certain shipments when they arrive at U.S. ports. He reports his
discovery and is fired.

155

Ceballos argued to the Court that "it would be perverse to protect speech of such

public significance less because the person best situated to alert his agency to the

danger was the one who spoke." 156

The obvious query resulting from these examples is who is better suited to
speak on issues of public health, safety, and ethical breaches than those most

closely involved, and whose speech does society most need to hear on such
subjects? The Supreme Court's pre-Garcetti decisions resoundingly affirmed the
"necessity for informed, vibrant dialogue in a democratic society" and identified

that "widespread costs may arise when dialogue is repressed." 157 The
hypothetical scenarios suggested by Ceballos illustrate the incongruous result of

Garcetti. The practical application of Garcetti takes away the constitutionally
protected voice of public employees who are most familiar with the issues on
which they may need to speak out and arguably those on which they are the most
knowledgeable in their respective fields. The costs of silence are too high to
provide the U.S. Customs officer or the Capitol Police officer with an incentive

to withhold disclosure of critical information involving these matters of public

concern for fear of retaliatory action by an employer.

A related criticism of Garcetti is that its effect is too far-reaching. Garcetti
touches every person who makes the decision to become a public
servant—teachers, bus drivers, police officers, public defenders, prosecutors,
politicians—and strips them of their constitutional protection for speech made
pursuant to their official duties. Garcetti simply affects too much speech.
According to the 2005 U.S. Census Public Employment Data statistics, there are

18,361,208 federal, state, and local full time public employees.
158

The Supreme
Court previously expressed "serious concerns" about widespread prohibitions on

public employee speech, specifically relating to a ban that "chills potential speech

before it happens."
159

This exclusion from First Amendment protection will
likely discourage public employees from stepping forward to disclose misconduct

155. Brief for Respondent, supra note 126, at 43.

156. Id. Accord Garcetti, 126 S. Ct. at 1965 (Souter, J., dissenting) (noting that "it seems

obvious that the individual and public value of such speech is no less, and may well be greater,

when the employee speaks pursuant to his duties in addressing a subject he knows intimately for

the very reason that it falls within his duties").

157. Garcetti, 126 S. Ct. at 1959 (majority opinion).

158. U.S. Census Bureau, Federal Government Civilian Employment by Function:

December 2005, http://ftp2.census.gov/govs/apes/05fedfun.pdf; U.S. Census Bureau, 2005

Public EmploymentData—StateandLocalGovernments, http://ftp2.census.gov/govs/apes/
05stlus.txt.

159. United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 468 (1995).



2008] GARCETTI V. CEBALLOS 2 1

1

and wrongdoing in the public workplace. As Gerald McEntee, President of the
American Federation of State, County and Municipal Employees, observed:

This decision gives constitutional sanction to those who would fire
a public worker for stepping forward to preserve the integrity of our

public institutions as a government whistleblower.

Government employees should not be asked to sacrifice their First

Amendment rights to work in the public sector. . . . [W]e ought to protect
rank-and-file public employees who are courageous enough to risk their
own careers to speak out about possible violations of the law or ethical
breaches.

160

As discussed, early findings demonstrate that interpretation and application
of Garcetti have proven difficult for the courts. This is due in large part to the

fact that the Court created a critical threshold requirement, yet refrained from

establishing a framework by which lower courts can reliably implement this

requirement. Not only was no framework provided, but the Court specifically

refrained from deciding whether Garcettfs analysis applies in the context of

"academic scholarship or classroom instruction."
161

Failure to expressly carve out

academic scholarship from the reach of Garcetti has raised significant concerns

and commentary. Justice Souter identified that Garcetti is potentially "spacious

enough" to encompass teaching in public universities and colleges and thereby

eliminate constitutional protection for educators whose speech is required based
on their official duties.

162
The majority's failure to explore its application to

public employee speech involving scholarship or teaching will force lower courts

to wrestle with this complex issue.

While no circuit courts of appeals have, as of the time of writing of this Note,

specifically addressed Garcetti' s application to academic freedom in the post-

secondary education setting, the Seventh Circuit Court of Appeals recently

addressed how Garcetti applies in the context of the primary school setting in
Mayer v. Monroe County Community School Corp. 163 In Mayer, an elementary
school teacher claimed a violation of her First Amendment rights when her
contract allegedly was not renewed because she expressed a political viewpoint

160. Press Release, American Federation of State, County and Municipal Employees, supra

note 1; see also Williams v. Riley, 481 F. Supp. 2d 582, 584-85 (N.D. Miss. 2007) (denying First

Amendment protection where an officer reported a fellow officer for beating an inmate and stating

the court is "gravely troubled" by the effect of Garcetti on such a factual scenario).

161. Garcetti, 126 S. Ct. at 1962.

162. Id. at 1969 (Souter, J., dissenting).

163. 474 F.3d 477, 478 (7th Cir. 2007). The Fourth Circuit, however, declined to apply

Garcetti in a case involving a First Amendment claim relating to education, noting that the

Supreme Court refrained from determining whether Garcetti is applicable in the educational setting.

Lee v. York County Sch. Div. 484 F.3d 687, 694 n.l 1 (4th Cir. 2007). Rather, the Fourth Circuit

instead chose to continue its application of Pickering/Connick in circumstances involving

education. Id.



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INDIANA LAW REVIEW [Vol. 4 1 : 1 87

in her current-events class discussion.
164

Parents complained, and the principal

instructed the faculty to refrain from voicing opinions concerning political

debates.
165

In an opinion written by Chief Judge Easterbrook, the Seventh Circuit

determined that Garcetti applied to Mayer's speech because the current-events

lesson Mayer taught was considered part of her assigned duties. 166 The court held
the "first amendment does not entitle primary and secondary teachers, when
conducting the education of captive audiences, to cover topics, or advocate

viewpoints, that depart from the curriculum adopted by the school system."
167

Although the Seventh Circuit specifically left open the issues of the breadth

of "constitutional protection of scholarly viewpoints in post-secondary

education," publications by primary and secondary teachers, and speech made by
teachers outside of the classroom,

168
the court's reasoning in Mayer raises

concerns for the protection of academic freedom in the post-secondary setting as

well. Specifically, the court found that the "school system does not 'regulate'

teachers' speech as much as it hires that speech. Expression is a teacher's stock
in trade, the commodity she sells to her employer in exchange for a salary."

169

Further explaining its reasoning, Chief Judge Easterbrook identified that the facts

of Mayer made for an easier case for the employer to prevail than the facts of
Garcetti because "teachers hire out their own speech and must provide the service
for which employers are willing to pay."

170
Thus, Mayer could discuss all sides

of political controversies with her class, but could not express opinions on such

topics.
171

Such a restriction on the free expression of opinions and exchange of

ideas in the public university or college setting would severely restrict, if not

eliminate, educators' ability to contribute in a meaningful way to scholarly
dialogue or writing.

172
In order to adequately safeguard the vital role played by

164. Mayer, 474 F.3d at 478.

1 65

.

Id. The teacher alleged that she answered a student' s inquiry regarding whether she had

participated in a demonstration against the United States' involvement in Iraq. Id. She informed

the student that she honked her car horn in response to a sign encouraging motorists to '"Honk for

Peace.'" Id.

166. Id. at 480.

167. Id.

168. Id.

169. Mat 479.
170. Id. at 479-80 (noting as a particularly compelling factor that primary school students

represent a captive audience, and the "Constitution does not entitle teachers to present personal

views to captive audiences against the instructions of elected officials").

171. Id. at 480.

172. See Brief of Amici Curiae the Thomas Jefferson Center for the Protection of Free

Expression, and the American Association of University Professors at 7, Garcetti v. Ceballos, 126

S.Ct. 1951 (2006) (No. 04-473), 2005 WL 1801034 ("Indeed, the most valuable contributions that
most university scholars and teachers make to public debate and understanding typically derive

from their academic disciplines or fields of expertise. Thus, any suggestion that 'matters of public

concern' may not encompass job-related expression of professors would undermine the special

protections the Court has given academic freedom for the past 50 years. Adoption of such a view



2008] GARCETTI V. CEBALLOS 2 1

3

public educators in the post-secondary education arena, Garcetti should not be

applied in the academic scholarship context.
173

The numerous policy concerns arising from the early applications of Garcetti
signal a warning that courts must seek to narrowly interpret Garcetti when
defining a public employee's official duties. The Connick Court declared that its
"responsibility is to ensure that citizens are not deprived of fundamental rights by

virtue of working for the government."
174

The Garcetti Court affirmed the
authority and relevance of Connick, yet maneuvered around this self-identified

responsibility to preserve public employee constitutional rights by eliminating

citizenship status for those public employees speaking pursuant to official job

duties. Public employees have a compelling interest in speaking on matters of

public concern, and that interest is in no way lessened when the employee's
official duties require such speech. As such, it does not seem appropriate to
categorically preclude such speech from First Amendment protection when a
public employee's duties require speech on a matter of public concern, such as,

bringing health, safety, or ethical violations to light.

Society at large also holds a corresponding interest in hearing speech on

matters of public concern. The Garcetti Court reaffirmed its prior decisions that
if public employees were "not able to speak on [the operation of their

employers], the community would be deprived of informed opinions on important

public issues. The interest at stake is as much the public's interest in receiving
informed opinion as it is the employee's own right to disseminate it.'" 175 Courts
applying a broad interpretation of Garcetti serve to further frustrate citizens'

participation in critical dialogue by stifling the vital exchange of ideas so

fundamental to our society's ideals. As expressed in Connick, "'[s]peech
concerning public affairs is more than self-expression; it is the essence of self-
government.'"

176
Applying a narrow interpretation of the meaning of "pursuant

to their official duties" would encourage public employees' speech on matters of

public concern by providing a greater likelihood for obtaining constitutional

protection for their speech, ultimately furthering society's interest in receiving

important commentary on matters of public concern.

would also create a perverse irony: Constitutional protection for a professor's speech would now

extend only to those public statements on which the speaker was least well informed, while denying

such protection to statements reflecting the speaker's academic expertise. . . .").

173. See id. ("[T]he Court has not wavered in identifying the university as 'a traditional sphere

of free expression so fundamental to the functioning of society' that First Amendment concerns

apply with special force." (quoting Rust v. Sullivan, 500 U.S. 173, 200 (1991))).

174. Connick v. Myers, 461 U.S. 138, 147 (1983).

175. Garcetti v. Ceballos, 126 S. Ct. 1951, 1959 (2006) (majority opinion) (quoting City of

San Diego, Cal. v. Roe, 543 U.S. 77, 82 (2004)). The Court also recognized that "large-scale

disincentive to Government employees' expression also imposes a significant burden on the

public's right to read and hear what the employees would otherwise have written and said." Id.

(quoting United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 470 (1995)).

176. Connick, 461 U.S. at 145 (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)).



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Conclusion

Courts confronted with evaluating whether Garcetti precludes First

Amendment protection for public employee speech should take a narrow
interpretation of Garcetti when defining "official duties" to minimize
unjustifiable interference with constitutional protection for speech on matters of

public concern. Adopting a narrow interpretation requires defining an

employee's official duties such that they are not distorted or inflated in an

artificial attempt to subject more speech to Garcetti. Courts must specifically
reject any attempt to invest public employees with vague, over-reaching

employment duties or general whistleblower duties in order to trigger the

application of Garcetti. Additionally, courts must not deem legal or regulatory
duties to be conclusive evidence that speech made in compliance with such
obligations is necessarily made pursuant to official duties.

The interests of the public in receiving informed speech and the interests of
the public employee in making informed speech demand minimal interference
with such expressions. The elementary school bus driver needs to raise his
concerns regarding bus inspection violations. The levee district official needs to
communicate her observations on levee maintenance and safety. The police
officer needs to raise allegations of police brutality. Society needs to be afforded

the opportunity to hear speech on such matters of public concern. As the
Supreme Court reaffirmed in Connick, "speech on public issues occupies the
'highest rung of the hierarchy of First Amendment values,' and is entitled to
special protection."

177
Rejection of a broad interpretation of the meaning of

"pursuant to their official duties" is one meaningful step toward returning speech

by public employees on matters of public concern to its rightful place in the

hierarchy of First Amendment protection.

177. Id. (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)).