October 2013 Vol. 112 No. 1 THE REVIEW

Pro-whistleblower Reform in the Post-Garcetti Era

Julian W. Kleinbrodt

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick-Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern-such as whistleblowers-so long as the government's administrative concerns did not outweigh the employees' free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti's problematic rule has forced courts to adopt odd exceptions; it has created perverse incentives and sits uncomfortably within established First Amendment doctrine. This Note encourages a move away from Garcetti by advocating for a tripartite balancing framework, whereby speech is sorted according to its importance rather than the speaker's role. In the case of whistleblowers, this system would help ensure that the government can only restrict speech by government employees exposing public wrongdoing under extraordinary circumstances. This framework is more compatible with the rest of First Amendment doctrine and ensures the protection of speech that is most valuable to society.

   //  VIEW PDF
& Other Current Events

Protecting Whistleblower Protections in the Dodd-Frank Act

In 2008, the United States fell into its worst economic recession in over seventy years. In response,...

A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle

For thirty years, the Armed Career Criminal Act ("ACCA") has imposed a fifteen-year mandatory minimum...

Rethinking the Timing of Capital Clemency

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority...

The Political Safeguards of Horizontal Federalism

For decades, we have debated whether "political safeguards" preserve healthy relations between the states...

A Solution to Michigan's Child Shackling Problem

Detained children routinely appear before Michigan's juvenile courts shackled with handcuffs, leg irons,...
MAILING LIST
Sign Up to Join Our Mailing List