First Amendment scholar hopes Supreme Court does not limit public employee free speech rights

First Amendment Center’s David Hudson hopes that in deciding whether voting by elected officials is a form of free speech, the U.S. Supreme Court does not apply Garcetti v. Ceballos which severely limits employees’ free speech rights. -db

First Amendment Center
Jandudary 11, 2011
By David L. Hudson Jr.

The U.S. Supreme Court will decide in Commission on Ethics of the State of Nevada v. Carrigan whether voting by elected officials is a form of free speech protected by the First Amendment. Let’s hope the justices don’t bring a 2006 case, Garcetti v. Ceballos, involving public-employee speech, prominently into the judicial mix.

The Nevada ethics commission is appealing a Nevada Supreme Court ruling in favor of Michael Carrigan, who as a member of the Sparks City Council challenged the constitutionality of an ethics law that said he should recuse himself from a vote because of a possible conflict of interest. Carrigan argues that council votes constitute free speech.

If the U.S. Supreme Court holds that the First Amendment is indeed in play, then the justices will also have to decide the appropriate level of constitutional review of the law. When the Nevada Supreme Court invalidated the law, it applied strict scrutiny, the highest form of judicial review, because it deemed voting by a elected official to be pure political speech — the core type of speech the First Amendment was designed to protect.

However, the ethics committee’s petition to the Court to take the case cited Garcetti three times, raising a red flag for the First Amendment. Other courts have held politicians’ voting to be analogous to public-employee speech. These courts applied the so-called balancing test from the Supreme Court’s public-employee case Pickering v. Board of Education (1968). Under Pickering, the employee’s right to speak on matters of public importance is balanced against the employer’s efficiency interests.

The problem with applying the public-employee analogy to elected officials’ speech is that public-employee free-speech protection has been limited — if not eviscerated — by Garcetti, in which the high court ruled that public employees have no First Amendment protection when they speak in the course of their official job duties.

If you apply Garcetti to elected officials, the result is that they have no First Amendment protection. That’s because their job is to cast votes on legislation and other matters. There is no “balancing” at all — just a flat-out rejection of the First Amendment.

Some lower courts post-Garcetti have already applied this case to silence the speech of city council members. If the U.S. Supreme Court applies Garcetti to elected officials’ speech, the First Amendment goes out the window for them.

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One Comment

  • As an elected official I’m deeply concerned about the current trend at Tri City Healthcare District (A Special District hospital in Oceanside, Ca) the fabrication of false assertions, allegations, and accusations against anyone who asks tough questions, or raise concerns, or criticize the management or board of directors. Under the current Board’s Chairwoman Reno’s promotion is to authorize the board’s general counsel to file restraining orders against taxpayers, elected officials by aggressively and subjectively defined Code of Conduct for “disruptive behavior” so as to chill First Amendment Rights. Why on earth would anyone run for public office when learning they will be placed in harms way because of the personal antics of those who want to cover up their misdeeds? The targeting of any elected official who asks questions and provides oversight is at great personal risk as well as our American Representative Democracy. There’s another thought too if the US Supreme Court sides with Garcetti what rights do the voters have if their elected representatives cannot represent? If the US Supreme Court tanks our rights – we will be in an abysmal decline furthering the spiral downward trend of an uncivil society.

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