Emily Westerfield, Associate Member, University of Cincinnati Law Review
The First Amendment protects public employees from employer discipline when they speak as private citizens about matters of public concern.[1] In Garcetti v. Ceballos, the Supreme Court carved out an exception to that general constitutional doctrine.[2] In the 2006 Garcetti case, the Supreme Court indicated that public employees who have spoken pursuant to their official work responsibilities are not considered to have spoken as private citizens. The First Amendment therefore does not protect public employees from employer retaliation in those particular situations.[3] The courts are currently split on whether the First Amendment protects public employees’ criticism of their employers when they speak as union officials. Within the last ten years, the Sixth, Seventh, and Ninth Circuits have each held that public employees who are also union officials effectively speak as private citizens in any circumstance where they are speaking in their capacity as union officials.[4] Earlier this year, however, the Second Circuit went in a different direction, holding that the answer to the issue hinges on whether public employees are speaking within the normal course of their professional duties as public employees.[5]
A source of confusion in the Supreme Court’s Garcetti opinion is the Court’s addition of the following statement: “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties that the employee might have enjoyed as a private citizen.”[6] Might it be said that when public employees speak about specific features unique to their particular work, that their speech “owes its existence” to the specific responsibilities that come with their work? The Supreme Court sought to resolve this ambiguity in Lane v. Franks.[7] In Lane, the Supreme Court further articulated that the Garcetti exception is limited to those instances in which public employees speak as a means of fulfilling a typical responsibility to their employers in the course of their work, and that the exception does not apply when public employees speak merely about their work.[8] The Court in Lane also emphasized the significant value in allowing public employees to discuss their concerns pertaining to their public employment.[9] The Court reasoned that because their position provides them with better insight than most into the complex issues within their work places, it is in the best interest of both public employees and the general public to protect the right of public employees to express their qualms regarding their work.[10]
In Montero v. City of Yonkers, however, the Second Circuit refused to rule that, on a categorical basis, when public employees speak within their capacity as union members, the First Amendment protects them from employer retaliation.[11] The Second Circuit’s departure from the majority position among the federal circuit courts that have ruled on the issue came from its concern that there may be some circumstances in which a public employee who is also a union member might criticize their employers because of their union involvement in the process of carrying out their specific work duties.[12] Yet it seems that the aforementioned type of categorical determination might just follow logically from the way in which the Supreme Court’s holding in Lane informs its holding in Garcetti. In Boulton v. Swanson, for example, the Sixth Circuit concluded that because the normal responsibilities of any public position never involve speech that public employees make in their capacity as union members, speech that is made within the scope of public employees’ involvement in unions—even if the speech is made at work or about work—is protected by the First Amendment.[13] Thus, the Sixth Circuit ultimately ruled that a categorical determination that public employees speaking in their capacity as union officials are always protected by the First Amendment on the basis that they are considered “private citizens” is proper.[14] The Seventh and Ninth Circuits evaluated the Supreme Court’s majority opinions in Garcetti and Lane, in tandem, to draw similar conclusions about when public employees who speak out about their jobs in their capacity as union officials are protected from employer retaliation by the First Amendment.
A Seventh Circuit case decided in 2006, Fuerst v. Clarke, serves as a useful example of when the speech of someone who works for a public employer while simultaneously occupying a union position warrants First Amendment protection—at least according to the Sixth, Seventh, and Ninth Circuits.[15] In Fuerst, a deputy sheriff, who also served as the president of a deputy sheriff’s union, publicly condemned the county sheriff’s proposal to hire a civilian for a position historically reserved for a deputy sheriff.[16] As a result of the deputy sheriff’s public criticism, the county sheriff denied the deputy sheriff a promotion to sergeant.[17] After being denied the promotion, the deputy sheriff brought suit against the county sheriff, alleging employment retaliation in violation of the First Amendment.[18] The Seventh Circuit concluded that the deputy sheriff’s work responsibilities did not involve issuing comments pertaining to the county sheriff’s proposal regarding who to hire for a particular position.[19] Rather, the Seventh Circuit found that the sheriff deputy’s critical statements were made pursuant to his involvement in the deputy sheriff’s union.[20] Therefore, the Seventh Circuit held, pursuant to Garcetti and Lane, that the the county sheriff’s retaliatory act against the deputy sheriff in response to the deputy’s public remarks constituted a violation of the First Amendment.[21]
In Ellins v. City of Sierra Madre, a 2013 case involving a similar situation with a police officer speaking in his capacity as a member of a police union, the Ninth Circuit reasoned that the “inherent institutional conflict of interest between an employer and its employees’ union” indicates that public employees who speak in their capacity as union representatives cannot possibly be speaking pursuant to the responsibilities of their employment.[22] Thus, the Ninth Circuit categorically held that when public employees speak as union representatives, they are speaking as private citizens under the First Amendment, and are therefore constitutionally protected from employer retaliation on the basis of that speech.[23]
The conclusion drawn by the Sixth, Seventh, and Ninth Circuits, that individuals who act as both public employees and union officials are categorically protected by the First Amendment when they criticize their employers in their capacity as union representatives, is amply supported by the Supreme Court’s elaboration of the Garcetti exception in its Lane opinion. Moreover, the evident importance of allowing union officials to publicly speak out against certain conditions of their public employment suggests that public policy favors a broader reading of the Court’s Garcetti exception. The appropriateness of a categorical ruling on First Amendment protections for public employees who speak within the capacity of their union membership is apparent from both Supreme Court precedent and wider public policy considerations.
[1] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
[2] Id.
[3] Id.
[4] Montero v. City of Yonkers, 890 F.3d 386, 398-99 (2d Cir. 2018).
[5] Id. at 398.
[6] Garcetti, 547 U.S. at 421-422.
[7] Lane v. Franks, 134 S. Ct. 2369, 2379 (2014).
[8] Id.
[9] Id. at 2377.
[10] Id.
[11] Montero, 890 F.3d at 399.
[12] Id.
[13] Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015).
[14] Id.
[15] Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006).
[16] Id. at 772.
[17] Id.
[18] Id.
[19] Id. at 774.
[20] Id.
[21] Id.
[22] Ellins v. City of Sierra Madre, 710 F.3d 1049, 1060 (9th Cir. 2013).
[23] Id.
