Whistle(Blowing) While You Work

First Amendment Rights

The Supreme Court's leading opinion on the First Amendment rights of public employees ' Pickering v. Board of Education, 391 U.S. 563 (1968) ' requires courts 'to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matter of public concern and the interest of the State, as employer, in promoting the efficiency of the public services it performs through its employees.' Id. at 568. Garcetti rejects the two-part test distilled by the Ninth Circuit from Pickering: first, whether the speech addresses a matter of public concern, and if so, second, whether the employee's interest in expressing himself outweighs the government's interests in promoting workplace efficiency and avoiding workplace disruption. On the first prong, a public employee was deemed to have addressed a matter of public concern when his speech related to an issues of political, social, or other concern to the community. Because so much of what a public employee does in the course of a day conceivably falls into this definition of public concern, the analysis often shifted to the second prong, much to the dismay of the employer, which was required to bear the burden of proving that the balance of interests weighed in its favor. Further, the 'more tightly the First Amendment embraced the speech,' the more vigorous a showing of disruption was required. Ceballos v. Garcetti, 361 F.3d 1168, 1178 (9th Cir. 2004). In fact, the First Amendment was ordinarily also held to protect even false statements to encourage 'free debate,' absent a showing of actual injury to the employer. Id. at 1179.