The United States Supreme Court decision of Garcetti v. Ceballos deserves its rightful place in the Court’s hall of shame. In Garcetti, the Court issued a decision that serves as a Dred Scott-type ruling for public employees, diminishing their free speech rights to an unacceptable level. The Court created a categorical rule that public employees have no free speech rights when engaged in official, job-related speech.
Under Garcetti, it does not matter how valuable an employee’s speech is, how much corruption that speech exposes, or whether the speech informs the public regarding an important issue. Instead, the five-justice majority focused solely on creating a bright-line rule eviscerating the free speech rights of employees. Today, the Garcetti decision continues to wreak havoc on countless public employees across the country.
Part II of this essay briefly discusses the pre-Garcetti landscape of public-employee-related First Amendment jurisprudence, with a focus on the Court’s, now defunct, balancing test for addressing such complaints, followed by a discussion of Garcetti and its multiple dissents. Part III addresses several lower court decisions illustrating how Garcetti has led to unfair results and unnecessarily diminished the free speech rights of police officers, firefighters, public school teachers, and other public employees. Finally, part IV discusses two slight retreats from the broad categorical rule created in Garcetti. These retrenchments are important, but better still would be the abrogation of Garcetti itself.
Hudson, David L. Jr., "The Supreme Court's Worst Decision in Recent Years--Garcetti v. Ceballos, the Dred Scott Decision for Public Employees" (2021). Law Faculty Scholarship. 147.