Public Employee Speech, Categorical Balancing and § 1983: A Critique of Garcetti v. Ceballos

Authors

Sheldon H. Nahmod, Chicago-Kent College of Law

Abstract

I propose to discuss Garcetti's First Amendment reasoning as well as the implications of the § 1983' setting in which Garcetti and other public employee free speech cases typically arise. After briefly setting out the Court's opinion and the three dissenting opinions, I begin by addressing the pros and cons of Garcetti, and in the course of so doing, I discuss the prior Pickering-Connick landscape that Garcetti so significantly altered. I consider the deeper First Amendment implications of Garcetti, including itsuse of categorical balancing to create an absolute immunity fromFirst Amendment liability for employer discipline based on job-required public employee speech. I also address Garcetti'sempha- sis on citizen status and the functions of public employee speech. The role of the concept of government speech and the possible implications of Garcetti on academic freedom are briefly discussed as well. Finally, I address the relevance of § 1983 to the First Amendment aspects of Garcetti and of public employee speech in general.

Recommended Citation

Sheldon H. Nahmod, Public Employee Speech, Categorical Balancing and § 1983: A Critique of Garcetti v. Ceballos, 42 U. Rich. L. Rev. 561 (2008).
Available at: https://scholarship.richmond.edu/lawreview/vol42/iss3/3