Government Speech and the Publicly Employed Attorney

Abstract

In Garcetti v. Ceballos, the U.S. Supreme Court incorporated the “government speech” doctrine into its case law regarding the speech rights of public employees. This incorporation had the effect of nullifying a public employee’s free speech rights whenever the employee is speaking pursuant to her official duties. While the Garcetti rule may be problematic in a number situations, it is particularly problematic as applied to publicly employed attorney speech, most notably the speech of prosecutors and public defenders. Attorney speech (including the speech of publicly employed attorneys) is not government speech and should not be treated as government speech.

A major premise of the government speech doctrine – allowing the government to make expressive choices – does not apply to criminal process. Compliance with the Constitution upon prosecution of an individual is not an “expressive choice” left to government discretion. The primary justification underlying the government speech doctrine is that government speakers will be responsible for the messages they promote through political accountability. Such political accountability does not exist for attorney speech aimed at preserving the rights of criminal defendants. More importantly, political accountability is both insufficient and inadequate to protect the constitutional rights and interests at stake. Indeed, in the criminal process context, the content of the “government message” is dictated by the Constitution and the role of attorneys in our system of justice. Finally, the scope of government control inherent in the theory and practice of the government speech doctrine is at odds with and interferes with the core function of the publicly employed attorney.

Keywords: government speech, attorney speech, first amendment, Garcetti v. Ceballos, free speech, public employee