John Elwood reports at SCOTUSblog that the Supreme Court “appears to be holding Byrne v. Jackler, 11-517 . . . to consider it with Bowie v. Maddox, 11-670, in which the District of Columbia’s response is due January 30.”
As reported here, each of these cases was brought by a law enforcement officer who claimed he was fired for making a true written statement pursuant to the instructions of a superior and refusing to make a statement he believed to be false. The Second Circuit allowed the First Amendment retaliation suit to go forward in Byrne, and the D.C. Circuit refused in Bowie.
The circuit split turns on divergent interpretations of the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The D.C. Circuit, interpreted this as a “categorical” prohibition on First Amendment protection for speech uttered (and withheld) in the line of duty. Because it was in his official capacity that Bowie drafted one affidavit and refused to sign another, his speech was not protected by the First Amendment. The Second Circuit, though, discerned in the same holding an exception for speech that has a civilian analogue. That court held that Jackler’s refusal to make a false statement was protected–even when ordered by a superior–because “a citizen has a First Amendment right to decide what to say and what not to say, and, accordingly, the right to reject governmental efforts to require him to make statements he believes are false.” The D.C. Circuit was not persuaded:
The Second Circuit gets Garcetti backwards. The critical question under Garcetti is not whether the speech at issue has a civilian analogue, but whether it was performed “pursuant to . . . official duties.” A test that allows a First Amendment retaliation claim to proceed whenever the government employee can identify a civilian analogue for his speech is about as useful as a mosquito net made of chicken wire: All official speech, viewed at a sufficient level of abstraction, has a civilian analogue. Certainly the district attorney’s memo in Garcetti was analogous in some sense to private speech—for example, testimony or argumentation on the same subject by the criminal defendant it concerned. Critically, though, Ceballos’s memo was composed as part of his government job, and the Supreme Court unambiguously “reject[ed] . . . the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties.”
In defense of the Second Circuit, the plaintiff in Byrne argues that his “refusal to commit a crime at the direction of his superiors carried a relevant citizen analogue,” because a police department is an “independent state agency responsible for entertaining [citizen] complaints” and because breaking the law can never be a legitimate job function.
Attempting to distinguishing his case from Garcetti, the plaintiff in Bowie argues that the duty of all citizens to “giv[e] only truthful testimony” elevates his speech above the realm of “speech pursuant to official duties,”
If the Supreme Court hears either or both of these cases, it will have to decide whether such exceptions to the general rule against First Amendment protection for employer-directed speech can be squared with the “categorical” line that even the dissenting Justices perceived Garcetti‘s majority to have drawn.
- Bowie v. Maddox, No. 08-5111, 642 F.3d 1122 (D.C. Cir. June 21, 2011) (Brown, J., joined by Sentelle, C.J., and Williams, S.J.) (first opinion)
- Bowie v. Maddox, No. 08-5111, 653 F.3d 45 (D.C. Cir. Aug. 31, 2011) (Brown, J., joined by Sentelle, C.J., and Williams, S.J.) (denying reh’g)
- Jackler v. Byrne, No. 10-0859-cv, 2011 WL 2937279 (2d Cir. July 22, 2011)
- Garcetti v. Ceballos, 547 U.S. 410 (2006)
Cert Stage Documents:
- Byrne v. Jackler, No. 11-517 (S. Ct.): Cert petition, Brief in Opposition
- Bowie v. Maddox, No. 11-670 (S. Ct.): Cert petition, Brief in Opposition due January 30, 2012.
- “The D.C. Circuit did not use tweezers–it used a sledgehammer”, (Oct. 31, 2011).