Cases interpreting the First Amendment rights of public employees have consistently held that such employees do not lose, and are not subject to a lesser, First Amendment protection simply by virtue of their public employment.  However, an alarming trend of recent cases has limited the ability of public employees to challenge retaliatory actions by employers only to those occasions where the employee has spoken on a matter of public concern as a citizen, rather than as an employee.

Beginning with the US Supreme Court's holding in Garcetti v. Ceballos, 547 US 410 (2006), Courts are distinguishing between a public employee's speech as a citizen versus as an employee. Ceballos was a deputy district attorney for the LA District Attorney's Office who became concerned that a deputy had falsified an affidavit for a search warrant. Ceballos told his supervisors of his concerns and submitted a memorandum in which he recommended dismissal of the case. Despite Ceballos's concerns, the prosecution continued. During a hearing on a defense motion to suppress the evidence obtained from the disputed warrant, Ceballos was called as a witness by the defense to recount his opinion.  The court denied the motion and upheld the warrant.  Ceballos claimed that he was subsequently retaliated against by way of punitive reassignment and denial of a promotion as a result of his conduct.

Ceballos eventually brought a Federal Civil Rights action asserting that his supervisors violated his Free Speech rights. The DA's office denied the retaliation and claimed that Ceballos' memo was not constitutionally protected speech under the First Amendment. The District Court granted summary judgement concluding that Ceballos wrote his memo pursuant to the duties of his employment and thus was not entitled to First Amendment protection for the memo's contents. The Court of Appeals, Ninth Circuit, reversed, and held that Ceballos's criticism of the warrant in the memo constituted protected speech under the First Amendment.

The Supreme Court, in a 5-4 decision authored by Justice Anthony Kennedy, held that the First Amendment does not prevent employees from being disciplined for statements they make pursuant to discharging their professional responsibilities. The Court wrote that Ceballos was still free to engage in public debate about matters of public concern,  but in the present instance wrote the memo as part of his job and thus the government was not prohibited from "evaluating his performance" by way of the disputed actions. The rationale presented by the Court in limiting First Amendment protection to public statements made outside the scope of official duties was "because that is the kind of activity engaged in by citizens who do not work for the government."  The Court held that speech which "owes its existence to an employee's professional responsibilities" is not protected.

A subsequent decision of the Ninth Circuit in Eng v. Cooley, 552 F. 3d 1062 (9th Cir. 2009) enunciated a sequential 5-part test for determining whether speech is entitled to First Amendment protections: (1)Whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee (3) whether plaintiff's protected speech was a motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. A negative answer to any question would end the inquiry and require rejection of the claim.

A later Ninth Circuit decision, Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009) applied the principles in Ceballos, when it held that two police officers who claimed they were retaliated against for speaking out about corruption within their own police department did not engage in Constitutionally protected speech because the officers spoke as employees, rather than as citizens.  The Court, citing to prior cases, found that the duties of officers included "preventing the commission of crime, assisting in its detection, and disclosing all information known to them which may lead to the apprehension and punishment of" criminals.  Thus, the officers' speech occurred within the course of their duties as law enforcement officials.

While free speech is not dead for public employees, the recent cases show that the pendulum is swinging in the "wrong" direction.  Clients need be cautious when speaking in a manner critical of their employers and are urged to consult with legal counsel if in doubt about their rights and protections before doing so, especially in any forum that may cause the speech to be regarded as part of their job duties.