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

handle is hein.journals/jotwell2017 and id is 430 raw text is: 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 1/3

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