The Legal Environment of Human Resources Management 75
of access to a public employer ’ s property, and freedom from religious
discrimination.
Prior to 2006, the prevailing legal theory under the First Amendment
was that the interests of public employees in free speech were balanced
against the interests of the state, as employer, in promoting the effi ciency
of the public services it performs through its employees. There needs to be
a balance between the interest of a public sector employee, as a citizen, in
commenting on issues of public concern and the interests of the state, as an
employer, in promoting the effi ciency of its public services via its employ-
ees. If the disciplined employee did engage in speech protected by the First
Amendment through the balancing of interests, the discipline could still
be upheld if the employer could show that the employee would have been
disciplined for other, legitimate reasons ( Pickering v. Board of Education , 1968;
Connick v. Myers , 1983; McPherson v. Rankin , 1987; Mount Healthy, 1977).
In 2006, the U.S. Supreme Court, in Garcetti v. Ceballos , pronounced
a holding that many feel has reduced the First Amendment consti-
tutional protections afforded to public sector employees in speech cases
(Hudson, 2008). The Garcetti decision created an additional hurdle for
public employees by requiring them to show they were speaking as citizens
on a matter of public concern and not simply doing their jobs when they
expressed themselves. According to the Court, public sector employees who
speak as a result of the required duties of their job do so as employees
rather than as citizens and will not be afforded First Amendment protec-
tions from subsequent disciplinary action by their employers as a direct
result of the speech (Garry, 2007).
Ceballos was a deputy district attorney in the Los Angeles County
District Offi ce, who was demoted after fi ling a deposition memorandum
outlining alleged false statements by police contained in an affi davit used
to obtain a search warrant and informing defense counsel of those false
statements. After being demoted, Ceballos fi led a suit alleging that his
demotion was a result of his speech protected by the First Amendment.
The U.S. Supreme Court held that the First Amendment did not apply
because the deputy district attorney spoke as an employee and not as a
citizen when he wrote his memorandum (Garry, 2007). The issue presented
was not whether the speech was a matter of public concern, but whether
it was made by a government employee in implementing his offi cial duties.
Ceballos spoke as a public employee and not as a citizen, so the Court
held that his supervisors had every right to criticize his performance and
take disciplinary action.