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8 Loy. J. Pub. Int. L. 73 (2006-2007)
Garcetti v. Ceballos: The Dual Threshold Requirement Challenging Public Employee Free Speech

handle is hein.journals/loyjpubil8 and id is 77 raw text is: GARCETTI V. CEBALLOS: THE DUAL THRESHOLD REQUIREMENT CHALLENGING PUBLIC EMPLOYEE FREE SPEECH Kathryn B. Cooper The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech. Justice Anthony Kennedy I: INTRODUCTION The First Amendment states that Congress shall make no law... abridging the freedom of speech, or of the press.. .' The First Amendment, while commanding, does not exist in a vacuum and routinely finds itself at odds with other fundamental rights and elementary needs. One such conflict arises when looking at the First Amendment rights of the public employee versus the government's need, not as a Sovereign but as an employer, to function efficiently and effectively. Achieving harmony between these two ideals has been particularly difficult. Theorists have long questioned where the line in the sand should be drawn. On the one hand, some believe the right to First Amendment freedom is an intrinsic right wholly unrelated to any external need for system function and • 2 efficiency. On the other hand, some believe public employees have no right to challenge the conditions placed on the terms of their employment regardless of any constitutional concerns. In 1892, while serving on the Massachusetts Supreme Court, Justice Holmes, a proponent of the latter of these two theories, held that a police officer may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.4 1. U.S. CONST. amend. I. 2. Risa L. Lieberwitz, Freedom of Speech in Public Sector Employment; The Deconstitutionalization of the Public Sector Workplace, 19 U.C. DAVIS L. REV. 597, 603 (1986) (discussing the issue of first amendment speech in the public workplace). 3. Connick v. Myers, 461 U.S. 138, 143 (1983). 4. McAullife v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892) (police officer was removed from office for violating a police regulation prohibiting the solicitation of money for any

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