On Public Employees and Judicial Buck-Passing: The Respective Roles of Statutory and Constitutional Protections for Government Whistleblowers

In Garcetti v. Ceballos, the Supreme Court held that public employees have no First Amendment protections for speech made “pursuant to their official duties.” Writing for the majority, Justice Kennedy assured readers that the holding did not undermine “the potential societal value of employee speech.” Among other things, Kennedy pointed to a “powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to [public employees] who seek to expose wrongdoing.” Yet as Justice Souter pointed out in dissent and as several amici had informed the Court in their briefs, “the combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not a showing that worries may be remitted to legislatures for relief.” Indeed, in 2006—the year that Garcetti was handed down—federal employees lacked statutory protection for speech made pursuant to their official duties, and it was unclear in many states whether state employees were entitled to such protections. In this Article, I consider the influence that actual or potential statutory protections do, should, and should not have on judicial decisions about the scope of constitutional protections, looking predominantly through the lens of public employees’ First Amendment rights. In Part I, I reflect on several areas in which the Supreme Court has incorporated the existence or potential existence of statutory protections into its constitutional reasoning. In Part II, I assess the Supreme Court’s use of statutory protections to help justify limits on public employees’ First Amendment rights in Garcetti. I explain that the Court made questionable factual assumptions about the statutory landscape. Its constitutional analysis was more precarious still, as was its related reasoning as to why it could comfortably rely on legislative protections. In Part III, I look at judicial citations to Garcetti’s language about the “powerful network of legislative enactments” over the past twelve years. Most courts have simply taken Garcetti’s factual assertion as an article of faith. Some also have reiterated Garcetti’s reasoning to the effect that statutory protections are more fitting vehicles than the Constitution to protect public employee speech rights. In Part IV, I consider the relationship that ideally should exist between constitutional and statutory protections for public employee speech