Friday, October 1, 2010

Public employee speech - Protected?

Public employees free speech rights are limited. Those unaware of that concept need to read up on Garcetti v. Ceballos, and review subsequent developments, particularly case law in the Fifth Circuit. But what happens when an employee is not disciplined for provocative if not outrageous speech, as in this case where an assistant attorney general takes out after a gay college student in a blog. Good synopsis of the purported events from Workplace Prof Blog is here. Isn't the nexus between the AAG's job and allegations of what may be criminal misconduct by the college student sufficient to make discipline for the remarks appropriate under Garcetti? Probably, but there has been no discipline so far. So what happens if another AAG (or some other public sector employee)speaks out in support of the college student, or in opposition to the issues raised by the first AAG, and is disciplined? Does Garcetti prevent that public employee from even getting to the Pickering test requiring a justification for content based distinctions?