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In May, 2006, the U.S. Supreme Court held that statements of public employees pursuant to their official duties are not statements made as citizens, hence the First Amendment's free speech guarantees do not insulate their speech from being the basis for actions by their employer. Garcetti v. Ceballos, No. 04-473 (U.S. May 30, 2006). Although the case involved statements made by a prosecutor in Los Angeles, the decision has implications for all public employers and employees.

In Garcetti, a Los Angeles County deputy district attorney alleged that he suffered retaliation at work after accusing sheriff's deputies of lying to get a search warrant and then testifying in favor of the defendant at a court hearing. In a 5-4 decision, the U.S. Supreme Court remanded the case to the lower court for disposition consistent with its opinion that the employeeís expressions were ìpursuant to his official duties,î and therefore subject to discipline by his employer. Although the Court stated that it did not need to provide a "comprehensive frameworkî for defining when an employee is engaged in job-related duties (lessening the First Amendment protections afforded to the employee's speech), it specifically warned public employers against attempting to restrict employees' rights "by creating excessively broad job descriptions." And, the Court reserved for a later decision the question of whether the analysis in Garcetti would apply in the same manner to a case involving speech related to scholarship or teaching.

In March 2006, prior to the Garcetti decision, a U.S. District Court in Indiana ruled that a school teacherís First Amendment rights were not violated when she was disciplined for expressing her opposition to the war in Iraq to her students. Mayer v. Monroe County Community School Corp., 1:04-CV-1695 (S.D. IN 2006). Ms. Mayer was a probationary teacher who, during a class discussion about an article on peace marches, stated that peace was preferable to war and that she supported those marching in favor of peace in Iraq. Parents of students in the class complained about these statements, and about other aspects of Ms. Mayersí teaching and communication styles. After classroom observations and a performance review, the building principal recommended that Ms. Mayerís contract not be renewed for the next year. The School District Board followed that recommendation.

Ms. Mayer claimed that her non-renewal was retaliation for her opposition to the war, which she considered to be an exercise of her First Amendment rights, and a violation of the teacher tenure statute. In ruling in favor of the School District, the federal District Court first applied the standard set down by the Supreme Court in the Connick case. Under Connick, to be constitutionally protected, ìspeechî by a public employee must be made in oneís capacity as a citizen on a matter of public concern. If that standard is met, then the inquiry is whether the public employeeís interest in commenting upon a matter of public concern outweighs the interests of the public employer in promoting efficiency in the workplace and in the services it performs for the public, as discussed in the Pickering decision.

While acknowledging that the war in Iraq is a matter of public concern, the Court determined that Ms. Mayer was not expressing an opinion in her capacity as a citizen, because the ìspeechî at issue occurred during instructional time when Ms. Mayer was an employee of the District. Consequently, the speech was not protected under the First Amendment pursuant to the analysis in Connick, and the Pickering standard was never addressed.

Recently, the Boston Globe (Oct. 17, 2006) reported on a federal lawsuit filed by a long-term substitute teacher who was allegedly put on the ìdo not callî list after he spoke at a City Council meeting in opposition to spending $1.2 Million on Junior ROTC programs in public high schools. The ìspeechî at issue did not occur in the public employerís work place, or, it seems, during the speakerís on-duty time. These facts distinguish this case from Mayer, and may be enough to produce a different result.

In any event, there is a balance that needs to be struck between the exercise of First Amendment freedoms by public employees in the workplace and the rights of the employer to maintain control over those workplaces and over the services delivered to the public.