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June 19, 2014


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Michael C. Duff

Calvin -- I think that is exactly right. Whatever else all of this means (protesting a search warrant allegedly obtained by false affidavit is not a matter of public concern?) if I am a public employee I am not speaking out against my employer unless subpoenaed. I'm still waiting for the definitive public employee/professor-academic case, by the way.

Scott Bauries

I think it is a good idea to try to identify the spaces left between protected and unprotected public employee speech after these cases, but I want to push back on the distinction you draw here, because I don't read Garcetti to have decided anything about Ceballos's testimonial speech. Although the Garcetti Court recounted the facts surrounding the alleged retaliation against Ceballos, which included his testimony, all of the analysis in both the 9th Circuit opinion and the Supreme Court opinion that reversed it related solely to Ceballos's internal written memo recommending the dismissal of the case. So, although I believe the distinction you draw here is a plausible one, I don't think it necessarily follows from the Garcetti opinion itself.

Somewhat on the flip side of what you set forth above, the Lane Court (both the main opinion in footnote 4 and the concurrence) made a point to say that it was not deciding whether the subpoenaed testimony of a police officer, for example, whose ordinary job duties include testifying, would be protected. Under Garcetti, I believe the answer to that question is no, at least under the First Amendment. In contrast, I believe that even the non-subpoenaed testimony of a public employee who is not employed ordinarily to testify would remain protected under the reasoning of both the main opinion and the concurrence in Lane, as well as under a straightforward reading of Garcetti. So, I don't think that whether a subpoena is issued or not matters. What matters is whether the plaintiff's job duties required the plaintiff to testify, and whether he did so in that capacity.

Calvin Massey

Thanks for the comment. I agree with most of your analysis, but have a quibble or two. I'm not so sure that a police officer's subpoenaed testimony is unprotected. His duties include testifying to that which he observed in the course of his job, but honest testimony in a judicial proceeding (especially a criminal proceeding) is of vital importance. The possibility of retaliation for such testimony may produce misleading (or even worse, false)evidence. In the case of non-subpoenaed testimony by a public employee whose duties do not include testimony, I think the presence or absence of a subpoena is important. Voluntary testimony by an employee about events encountered in his official duties does implicate the same concerns for the reliability of the judicial process, but it also raises the possibility that the employee is carrying on his war of words with his employer. Even though Garcetti relied mostly on the internal memo, it seems likely that Ceballos's transfer was also a product of his intransigence about the merits of the warrant. The courts may have preferred to focus on the memo, but the later testimony is a relevant fact. So, I still think a subpoena in this instance may be important to protection.

Scott Bauries

Calvin, thank you, as well, for your thoughtful response. I have a few thoughts about the dilemma you identify:

Normatively, I agree with your concern about not protecting a police officer’s testimony. I just read Garcetti’s rule descriptively to deny that protection. That’s the major flaw of the Garcetti decision—its over-inclusiveness. Police officers testifying as part of their job duties; public auditors exposing waste, fraud, and abuse; and public university academics teaching or writing scholarship are categorically excluded from the First Amendment’s protection, regardless of the personal expressive interests they might otherwise be pursuing at the time. The Garcetti rule is a very narrow exemption, but even so, it is broad enough to exclude from the First Amendment’s protection speech that most would agree should be protected. My most recent piece on this flaw focuses on academic freedom and can be found here: . I argue that the 9th Circuit’s recent efforts to carve out an exception to Garcetti’s rule for what it calls “academic speech” will be unavailing.

As to the subpoenaed/voluntary distinction, it would seem to me that a public employee would be more likely to have a personal citizen’s First Amendment interest in offering the latter than a police officer would have in offering the former. If the First Amendment is the source of protection, then the volunteer would seem always to have the stronger expressive interest, all other things being equal. In fact, a few colleagues and I filed an amicus brief in the Lane case, and this question was among the most difficult for us—how can we say that a person is engaging in that person’s own expression when the “expression” in question is compelled testimony? So, our reading began from the premise that it is harder to protect compulsory speech than voluntary speech. Ultimately, we agreed that, even where testimony is compelled, a witness makes numerous expressive choices in offering that testimony—tone, facial expression, embellishment, etc, but the volunteer should be better situated because the choice to testify at all is also an expressive choice.

A reporter recently asked me about the police officer question in light of Lane (before your post went live), and my response to her was that the police officer’s testimony should obviously be protected, even though it is his duty to testify, but that Garcetti makes such protection impossible under the First Amendment. I believe the source of the protection is something other than the First Amendment—perhaps the Due Process Clause derivatively from the rights of the parties to the case? I have been thinking about whether that is also true for academics.

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