Law Commons^™

Speaking Against Norms: Public Discourse And The Economy Of Racialization In The Workplace, Terry Smith

American University Law Review

Free speech controversies erupt from reactions to outlier voices, and these voices are often those of subordinated citizens such as racial minorities. Employing the tools of narrative, interviews with litigants and subjects, and interdisciplinary analysis of case law, Professor Terry Smith probes whether the social inequality of government employees of color affects the rigor of the First Amendment protection afforded their speech. Professor Smith argues that all public sector employees lack sufficient protection because their speech typically does not receive the highest constitutional scrutiny and because of the Supreme Court's recent decision in Garcetti v. Ceballos, which stripped public sector …

Shibboleths And Ceballos: Eroding Constitutional Rights Through Pseudocommunication, Susan Stuart

Law Faculty Publications

Recently, the Supreme Court rendered an inexplicable First Amendment decision that has far-reaching effects on the way government is held accountable to the public. In Garcetti v. Ceballos, the Court determined that a government employer can retaliate against an employee for doing his job correctly, notwithstanding the Constitution, so long as the employer targets speech that was part of the employee’s official duties. Inasmuch as government employees are often responsible for reporting government misconduct and other matters of public concern, this opinion essentially leaves the public unprotected from the unbridled discretion of government supervisors. The possible motivations for this …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Against Legislation: Garcetti V. Ceballos And The Paradox Of Statutory Protection For Public Employees, Ruben J. Garcia

Scholarly Works

In Garcetti v. Ceballos, the Supreme Court denied constitutional protection to a deputy prosecutor named Richard Ceballos. In reaching its decision, the Court pointed to the plethora of statutory protections that were available to government whistleblowers. A closer examination of these statutory alternatives reveals that they will not protect Ceballos. This is the paradox of statutory protection in labor and employment law-more sometimes is less for vulnerable workers.

This Article places the Garcetti case in the historical trajectory of worker protection—from no protection to statutory protection. This Article argues for a move toward constitutional and international protection …

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

UF Law Faculty Publications

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn

Articles & Book Chapters

Widespread adoption of mandatory representation votes and express protection of employer speech invite employer anti-union campaigns during union organizing, including employer-held captive audience meetings. Therefore, the problem of whether and how to restrict employers’ captive audience communications during union organizing is of renewed relevance in Canada. Captive meetings are a long-standing feature of American labour relations. This article considers how treatment of captive meetings evolved in the U.S., including the notion of employee choice, the “marketplace of ideas” view of expression dominating the American debate, and the central role of the contest between constitutional and statutory rights. It also considers …