Leakers and the First Amendment

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5 Responses

  1. Larry Rosenthal says:

    I quite agree with the careful analysis in this post. I can only add that some years ago I published an article taking issue with Professor Vladeck’s analysis of Garcetti (despite my generally high regard for his work), arguing that Garcetti, properly understood, is not a whistleblowing case (around notes 67-74), and that even the type of confidentiality policy at issue in cases such as Snepp is subject to First Amendment challenge under the Pickering balancing test (around notes 92-99). For those who are interested, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273745

    Larry Rosenthal
    Chapman University School of Law

  2. Orin Kerr says:

    Interesting question. Off the top of my head, I tend to think that Stephen Vladeck has the more persuasive reading of the Garcetti precedent.

  3. Joseph Slater says:

    I have great respect for both Steve Vladeck and Orin Kerr, but I agree with what Prof. Papindrea says about Garcetti. Not everything one does with information one learns on the job would be “pursuant to job duties,” at least not in the normal labor/employment law meaning of “at the employer’s direction” or “furthering or at least trying to further the employer’s interests.”

    Suppose the secretary of a (public) law school dean discovers, through meetings she attends or papers she sees because of her job, that the dean is embezzling funds. She contacts a newspaper reporter about this. She only has the knowledge because of her job duties, but I would think it a very artificial use of the term to say that her talk with the reporter was “pursuant to her job duties.”

  4. Orin Kerr says:

    Joseph, I don’t know why the employment law standard would govern, as the First Amendment issue strikes me as regulating a very different problem. In the First Amendment area, the regulated person needs to use employment status to get to the information in the first place: It seems artificial to let people tactically use employment status to get the secret, and then to get around the disclosure ban by allowing the person to just arrange a disclosure as a citizen rather than employee. It makes the disclosure ban quite easy to circumvent. I don’t think Garcetti allows that, as the case does not create a rule that if a person decides to disclose information learned as an employee and puts on a hat as citizen rather than employee, then the disclosure is protected by the First Amendment. Rather, the opinion seems to focus on the employee/citizen distinction only after concluding that the kind of disclosure would not interfere with the successful operation of the public employer’s function. That’s my tentative read on it, at least.

  5. Joseph Slater says:


    To me, the problem you describe is solved by the second prong of the Pickering / Connick test, described above: balancing the harm to the employer against First Amendment interests of the employee. Disclosing secret / classified material would be, at least in most cases, more harmful to the employer than beenficial to the employee, and thus would not be protected.

    Here are a few parts of Garcetti that I think support the idea that some sort of employment law standard governs the different issue of whether a statement was made “pursuant to job duties.” Garcetti, citing Connick approvingly, says that teachers are members of a community most likely to have informed opinions about school expenditures. Surely they would at least often come to those informed opinions through information they access through their work, but Garcetti didn’t find that disqualifying.

    Further, the Court in Garcetti stressed that “the controlling factor” in that case was that employee Ceballos’s “expressions were made pursuant to his duties as a calendar deputy” because he spoke as a “prosecutor fuflilling a responsibility to advise his supervisor about how best to proceed with a pending case.” Not all public employees have analogous responsibilities, and not all employee speech about information they discover on the job would be (as it was in Garcetti) speech to a supervisor [see my law school secretary hypo above].

    The Garcetti Court adds, “When he went to work and performed the task he was paid to perform, Ceballos acted as a government employee.” Further, the court stresses that “Employers have heightened interests in controlling speech made by an employee in his or her professional capacity.”

    This all sounds to me as if the Court meant that Garcetti applies when the speech is made as part of the employee’s job. There are, of course, many labor/employment law cases on the issue of whether an employee’s acts were part of the employee’s job or not (workers’ comp and respondeat superior cases, etc.)

    Respectfully, I think that’s what lower courts have been looking at in interpreting Garcetti. See [shameless self-and-others-promotion alert] the cases discussed in the notes following Garcetti in Malin, Hodges & Slater, _Public Sector Employment_ (West, 2d Ed. 2010) [pp. 28-32].

    Again, this doesn’t mean that public employees can access secret information at work, publish it, and then successfully claim First Amendment protection against any adverse action by the employer. I just think that in at least a good number of such cases, the employee would lose under the balancing test of Pickering / Connick, rather than under Garcetti.