2017 Jotwell: J. Things We Like 1 (2017)
Checking the Government's Deception through Public Employee Speech

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Constitutional Law
The Journal of Things We Like (Lots)
https://conlaw.jotwell.com



Checking the Government's Deception Through Public Employee

Speech

Author  : Helen Norton

Date : September 25, 2017

Heidi Kitrosser, The Snecial Value of Public Employee Sneeh 2015 Sup. Ct. Rev. 301 (2016).


Suppose  the United States elected a president with authoritarian tendencies. Imagine that the president regularly
attacked and undermined institutions and individuals that sought to hold his administration accountable for its actions.
Assume,  for purposes of the hypothetical, that members of the President's party controlled both the House and the
Senate and saw  little partisan self-interest in checking the executive branch. Just pretend.

Under those circumstances, where else might we turn for help in ensuring that our government remains accountable to
us? In The Special Value of Public Employee Speech, Heidi Kitrosser reminds us that government employees are
crucial safety valves for protecting the people from abuse and incompetence, given their unique access to information
and to a range of avenues for transmitting the same. More specifically, she points out that the everyday heroism of
public employees includes

       the simple acts of employees doing their jobs conscientiously and in accordance with the norms of their
       professions. When employees  engage in such behavior - for instance, when government auditors honestly and
       competently investigate and report in a manner consistent with professional auditing standards - they help to
       maintain consistency between the functions the government purports to perform and those that it actually
       performs. In this sense, public employees are potential barriers against government deception. They can
       disrupt government efforts to have it both ways by purporting publicly to provide a service while distorting the
       nature of that service. When they do this through their speech acts-for example, by reporting the results of
       budgetary analyses or scientific studies-they engage in speech of substantial First Amendment value. (Pp.
       302-303).


In Garcetti v. eba///s, however, the Supreme Court interpreted the First Amendment to offer no protection for public
employees' truthful speech in a broad range of circumstances-including their truthful reports of governmental lies and
other misconduct. Rejecting a First Amendment challenge by a prosecutor disciplined for writing an internal memo that
criticized a police affidavit as including serious misrepresentations, the Court held by a 5-4 vote that when public
employees  make statements pursuant to their official duties, the employees are not speaking as citizens for First
Amendment   purposes, and the Constitution does not insulate their communications from employer discipline. In
concluding that a government employer should remain free to assert control over what the employer itself has
commissioned  or created, the majority thus created a bright-line rule that treats public employees' speech delivered
pursuant to their official duties as speech that the government may restrain and punish without running afoul of the
First Amendment.

As I have detailed elsewhere, lower courts have applied Garcetti's bright-line rule to reject the First Amendment claims
of a wide swath of government workers punished for reporting all sorts of government misconduct. Examples include
financial managers fired after reporting public agencies' fiscal improprieties; an array of public employees terminated
after reporting health and safety violations; public health care workers and public school teachers punished after
expressing concerns about patient care and student welfare; and police officers discharged after reporting government
officials' illegal or unethical behavior. As Seventh Circuit Judge Ilana Diamond Rovner explained in one such case:
Detective Kolatski was performing his job admirably at the time of these events, and although his demotion for


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