Shibboleths and Ceballos: Eroding Constitutional Rights Through Pseudocommunication
Valparaiso University School of Law
Brigham Young University Law Review, Vol. 2008, No. 5, 2008
In Garcetti v. Ceballos, the Supreme Court determined that a government employer can retaliate against an employee for on-the-job speech so long as that speech was part of the employee's official duties. Because government employees are often responsible for reporting concerns about government mismanagement and other matters of public concern, this decision leaves the public unprotected from the unbridled discretion of government supervisors. The possible motivations for this decision are several: the adoption of an increasingly popular management style that marginalizes employees; a free-market theory of governance that reregulates control of government supervisors; and perhaps the protection of government supervisors from whistleblowers. All these possibilities are symptomatic of the Court's increasingly authoritarian tendencies in matters of employer-employee relations. In addition, the legal underpinnings for this result are rather unprecedented, having little legal support or analysis. Instead, the Court majority disguised its result and intentions by employing four basic rhetorical devices that masked the absence of legal analysis with pseudocommunication techniques.
Number of Pages in PDF File: 58
Keywords: pseudocommunication, freedom of speech, First Amendment, public employees, authoritarianism, Garcetti, Ceballos, OrwellAccepted Paper Series
Date posted: March 6, 2009 ; Last revised: March 10, 2009
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