March 2013 Vol. 111 No. 5 THE REVIEW

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

Caroline A. Flynn

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

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

   //  VIEW PDF
& Other Current Events

Judicial Diversity After Shelby County v. Holder

In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act ("VRA") preclearance...

Fall Submission Season

MLR’s Articles Office will open its fall submission season on Monday, August 18!  The Articles...

The Ninth Circuit's Treatment of Sexual Orientation: Defining “Rational Basis Review with Bite”

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional...

Inhibiting Intrastate Inequalities: A Congressional Approach to Ensuring Equal Opportunity to Finance Public Education

The United States has exhibited a strong commitment to public education throughout its history. The local...

War Is Governance: Explaining the Logic of the Laws of War from a Principal-Agent Perspective

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying...
MAILING LIST
Sign Up to Join Our Mailing List