The Second Circuit recently broadened the 1st amendment protection of employees and narrowed the application of Garcetti v. Ceballos, 547 U.S. 410 (2006).
In Jackler v. Byrne, _ F.3d _ (2d Cir. 2010), a police officer claimed that he was fired for refusing to retract a false statement in an official report about another officer’s misconduct. The defense, relying on Garcetti, argued that this conduct was done pursuant to his official duty. Garcetti has been used by employers ever since its release to severely limit the application of the 1st amendment in the workplace. Essentially, employers had claimed that almost any speech at work was pursuant to the employee’s official duties and therefore not protected.
The Second Circuit refused to stretch Garcetti this far:
Although defendants argue that Jackler’s refusals were part of his job and that Garcetti requires affirmance because otherwise any employee who simply files a truthful report could claim that his First Amendment rights were implicated because he did not file a false one, we reject that contention because it ignores the context of Jackler’s refusals. Jackler’s allegation–which must be accepted as true in the context of judgment on the pleadings–was that Rickard and Freeman, as directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed and to submit one that was false. In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report. In sum, it is clear that the First Amendment protects the rights of a citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement that he believes is false, and to refuse to engage in unlawful conduct by filing a false report with the police. We conclude that Jackler’s refusal to comply with orders to retract his truthful Report and file one that was false has a clear civilian analogue and that Jackler was not simply doing his job in refusing to obey those orders from the department’s top administrative officers and the chief of police.
This is great news for employees and their lawyers. who feared that Garcetti had all but removed any protection the 1st amendment gave employees in the workplace.