The Special Value of Public Employee Speech

In its 2014 decision in Lane v Franks, the Supreme Court held that a public employee deserved protection, under the First Amendment, for testifying under oath about financial fraud in the statewide youth program he directed. The Court rejected the lower court’s view that, because the testimony consisted of information that Lane had learned in the course of performing his job, his employer should be free to sanction him for his speech. The lower court’s approach, the Supreme Court explained, is in tension with one of the core reasons that it accords public employees some First Amendment protection. That is, “speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” Lane’s internal logic is eminently sound. If public employee speech is protected partly because employees gain unique insights on the job, it makes little sense to exclude from protection all speech reflecting those insights. This reasoning inspires both a hope and a lament about the Court’s 2006 decision in Garcetti v Ceballos. The lament is that Garcetti’s rule—that speech conducted pursuant to one’s public employment is unprotected—itself is at odds with the notion that public employee speech has special value because of the distinctive insights and expertise it offers. The Garcetti rule also reflects an overly generous vision of the government interests at stake. The hope is that Lane provides occasion to dig more deeply into both the special value of public employee speech and the government interests at issue and thus to rethink Garcetti entirely. More modestly, Lane can point the way to means by which Garcetti can be limited