The “Official Duties” Puzzle: Lower Courts’ Struggle With First Amendment Protection for Public Employees After Garcetti v. Ceballos

Abstract

Since 1968, the threshold inquiry for determining whether the First Amendment protected public employees from retaliation for their speech was whether the employee spoke as a citizen on a matter of public concern. For almost forty years, courts focused on whether an employee spoke on a “matter of public concern” and paid little attention to whether the employee spoke “as a citizen.” As long as their speech concerned a matter of public concern, public employees were generally protected from retaliation if the employee’s interest in commenting on public issues outweighed the state’s interest in promoting the efficiency of the public services it performed.