Policeman, Citizen, or Both? A Civilian Analogue Exception to Garcetti v. Ceballos

Abstract

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee’s speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke 'pursuant to her official duties,' her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely 'as a citizen' and not at all 'as an employee.' But this is a false dichotomy - especially because the value of the employee’s speech to the public is no less if she is speaking pursuant to mixed motivations.

A recent Second Circuit case, Jackler v. Byrne, suggests an exception to Garcetti’s categorical bar. Because the public employee’s speech in Jackler had a civilian analogue - that is, because an ordinary citizen could speak in the same manner and to the same audience - the court allowed the employee’s claim to proceed. The Second Circuit’s exception contradicts Garcetti, but it nonetheless furthers significant First Amendment values while adequately protecting public employers’ interest in controlling employee speech. As such, the Supreme Court should adopt the civilian analogue exception to ameliorate Garcetti’s problematic rule.

Keywords: First Amendment, public employee, Jackler v. Byrne, Garcetti v. Ceballos, civilian analogue, speech, government employer

JEL Classification: K30, K31