Policeman, Citizen, or Both? A Civilian Analogue Exception to Garcetti v. Ceballos

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee\u27s speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke pursuant to her official duties, her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely as a citizen and not at all as an employee. But this is a false dichotomy - especially because the value of the employee\u27s speech to the public is no less if she is speaking pursuant to mixed motivations. A recent Second Circuit case, Jackler v. Byrne, suggests an exception to Garcetti\u27s categorical bar. Because the public employee\u27s speech in Jackler had a civilian analogue - that is, because an ordinary citizen could speak in the same manner and to the same audience - the court allowed the employee\u27s claim to proceed. The Second Circuit\u27s exception contradicts Garcetti, but it furthers significant First Amendment values while adequately protecting public employers\u27 interest in controlling employee speech. As such, the Supreme Court should adopt the civilian analogue exception to ameliorate Garcetti\u27s problematic rule