Protecting Public Employees’ Free Speech: It’s Time for the 6th Circuit to Take Action

Blog Post | 111 KY. L. J. ONLINE | November 21, 2022

Protecting Public Employees’ Free Speech: It’s Time for the 6th Circuit to Take Action

By: Faith O. Turner, Staff Editor, Vol. 111

“Congress shall make no law … abridging the freedom of speech.”[1] This bedrock principle embedded in our Constitution is one of America’s most treasured values. It advances “democratic self-governance” and allows for “unhindered debate on matters of public importance.”[2] Although free speech is a fundamental right guaranteed by our Constitution, public employees have not always been afforded its full breadth.[3] Early in our nation’s history, public employment was not considered a constitutional right, and was instead viewed as a mere privilege.[4] For many years the Supreme Court relied on this rights-privileges distinction and took the position that individuals waived certain constitutional protections by simply accepting the terms of public employment.[5]

Fortunately, this line of reasoning has since been rejected as the Court became willing to recognize limited free speech protection. In 1968, the Supreme Court began a new era of First Amendment jurisprudence when it articulated a balancing test for considering the extent of a public employee’s protected speech.[6] Under this test, the public employee’s speech is protected if their interest in freely speaking outweighs the government’s interest in promoting an efficient workplace.[7]Although this was initially a huge win for public employee’s, the judicial limitations continued to unfold. Fifteen years later the court narrowed the standard even further, holding that public employee speech must be on a matter of “public concern” to receive First Amendment Protection.[8] The current standard is even more circumscribed. In 2006, the court held that public employees are not afforded First Amendment protection when they speak pursuant to their “official job duties.”[9]

The split between the federal circuits hinges on whether an employer may require an employee to sign their name to a statement they believe is false as part of their “official job duties”.[10] On one side of the divide, the Second Circuit has found that public employees in this predicament are protected by the First Amendment.[11] On the other side is the Seventh and D.C. Circuits’ approach to what actions constitute “official job duties.” These circuits share the view that public employees may be required by their employer to endorse a statement they believe is false.[12] The Sixth Circuit acknowledged this split when addressing an Administrative Law Judge’s First Amendment retaliation claim, but nonetheless decided to stay out of the fray.[13] Just this year, the Sixth Circuit reaffirmed its refusal to commit to either of these standards.[14]

It is no secret that circuit splits have their problems. For instance, splits between the circuits “create uncertain and disparate applications of federal legal rights” and “may undermine the federal judiciary’s legitimacy.”[15] Despite the negative implications that inevitably arise, the Supreme Court is more likely to reconcile circuit splits when they extend beyond the circuits originally involved.[16] Since the Sixth Circuit has twice refused to participate in the split, the chances for resolution by the Supreme Court are much lower than they would be if they did get involved.

Furthermore, the Supreme Court’s “docket is driven by its interest in resolving circuit splits.”[17] Evaluation of these scholarly observations, coupled with recognition of the geographic disparity that has resulted from the splits, shows just how crucial it is for the Sixth Circuit to take action. The court’s idleness has directly impacted public employees, and it’s time for these individuals to be afforded the constitutional protection they deserve.

[1] U.S. Const. amend. I.

[2] Ashutosh Bhagwat, The Democratic First Amendment, 110 Nw. Univ. L. Rev 1097, 1098 (2016); Pickering v. Bd. of Educ., 391 U.S. 563, 573 (1968).

[3] Christie S. Totten, Note, Quieting Disruption: The Mistake of Curtailing Public Employees’ Free Speech Under Garcetti v. Ceballos, 12 Lewis & Clark L. Rev. 233, 237 (2008).

[4] William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1440–1441 (1968).

[5] See McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517–18 (Mass. 1892) (“There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied term of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.”).

[6] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[7] Id.

[8] Connick v. Myers, 461 U.S. 138, 146 (1983).

[9] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

[10] Compare Jackler v. Byrne, 658 F.3d 225, 229, 231–32 (2d Cir. 2011) (holding that a police officer’s refusal to submit a report with which he disagrees is not part of his job duties) with Bowie v. Maddox, 642 F.3d 1122, 1127, 1134 (D.C. Cir. 2011) (holding that an employee was acting pursuant to his job duties when he refused to sign an affidavit containing “misstatements of fact” and “language that would convey impressions that he would not agree with” about a colleague (quotation omitted)) and Davis v. City of Chicago, 889 F.3d 842, 846 (7th Cir. 2018) (holding that an employee’s right to refuse to publish reports which contain conclusions he disagreed with was not protected by the First Amendment).

[11] Jackler, 658 U.S. at 241.

[12] Bowie, 642 F.3d at 1134; Davis, 889 F.3d at 846.

[13] Kingsley v. Brundige, 513 F.App’x 492, 499 (6th Cir. 2013).

[14] Cunningham v. Blackwell, 41 F.4th 530, 543 (6th Cir. 2022).

[15] Jonathan M. Cohen & Daniel S. Cohen, Iron-ing out Circuit Splits: A Proposal for the Use of the Irons Procedure to Prevent and Resolve Circuit Splits Among United States Courts of Appeals, 108 U.C. Berkeley 990, 996–97 (2020).

[16] Deborah Beim & Kelly Rader, Legal Uniformity in American Courts, 16 J. of Empirical Legal Stud., 448, 462 (2019).

[17] Amanda Frost, Academic highlight: Measuring the circuits’ success in the Supreme Court, SCOTUSBlog (Jul. 8, 2014, 10:15 AM) https://www.scotusblog.com/2014/07/academic-highlight-measuring-the-circuits-success-in-the-supreme-court/.