When it comes to the free-speech rights of teachers, the joke’s still on us

The good news is that Republican lawmakers in Arizona are now retreating from their recent proposal to require teachers to limit their speech to words that comply with FCC regulations on what can be said on TV or radio — a half-baked idea rightly characterized by one critic as the “most hilariously unconstitutional piece of legislation that I’ve seen in quite some time.”

The bad news is that, Arizona’s foolishness aside, when it comes to the free-speech rights of teachers, or any other public employee, the joke is on us.

The dark days began back in 2006, when a closely divided U.S. Supreme Court handed down a 5-4 ruling in the case Garcetti v. Ceballos. Up to that point, courts had always looked for two things when evaluating a public employee’s free-speech claims: first, whether the person was speaking out on a matter of public concern, and not just some personal grievance; and second, what the proper balance was between the individual’s right to free expression and the employer’s interest in ensuring an efficient, disruption-free workplace.
The legal precedent for this test stemmed from a 1968 Supreme Court case in which a public school teacher had been fired for writing a letter to his local paper in which he criticized budgetary decisions by the local school board. A lower court upheld the school’s decision to fire the teacher, but the highest court in the land reversed. Writing for the Court, Justice Thurgood Marshall was clear: “Absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”
Then came Garcetti in 2006, a case that began when an assistant district attorney from Los Angeles, Richard Ceballos, wrote a memorandum criticizing the failure of his office to dismiss a case that was marred by false testimony. Ceballos no doubt felt comfortable that his actions would be protected under the existing standard for public employee speech, and, sure enough, the Ninth Circuit Court of Appeals upheld his right to blow the whistle on his superiors. But five Justices of the U.S. Supreme Court disagreed, resulting in not just a dramatic turn of events for Richard Ceballos, but a new categorical exclusion for official, job-related employee speech.
As First Amendment Center scholar David Hudson explains, “The Garcetti decision caused a sea change in public-employee First Amendment jurisprudence, as many employees who speak out on important issues or blow the whistle on corruption no longer have a constitutional claim.”
Sure enough, since 2006 it has become increasingly difficult for public employees to speak out on matters of public concern that relate to their official duties. As Hudson explains, “After Garcetti, the importance of the information is not relevant. Many employees have spoken out on matters of public concern – even rank corruption in the workplace – but if the speech can be classified as official, job-duty speech they have no First Amendment protection.” Hudson says this new climate has led to a new term lawyers use to describe their clients who still seek First Amendment protection. Instead of getting justice, they get “Garcettized.”
So let’s enjoy a short laugh at the foolishness and the poorly-constructed effort of Arizona’s lawmakers to muzzle their state’s public school teachers. And then let’s remember that a more carefully constructed bill may not be as outlandish, and unlikely, as we think.
(This article also appeared in the Huffington Post.)
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