Does the First Amendment Protect Testimony by Public Employees?

The First Amendment represents a national commitment to the idea that public discussion is a fundamental principle of American government and citizenship that must be protected by the law. The Supreme Court has recognized several classes of speech that receive less protection, however, including speech by public employees. The Court has justified this limitation by concluding that the government has interests in maintaining control over its employees and an efficient workplace that may, at times, outweigh its employees’ interest in free speech. One recent case, Garcetti v Ceballos, narrows the class of public-employee speech that can receive First Amendment protection. Garcetti provides that statements made by public employees pursuant to their official duties are not protected by the First Amendment because such statements owe their existence to the public employees’ professional responsibilities. 

This Comment addresses a recent circuit split concerning whether and when testimony by public employees is “pursuant to official duties” under Garcetti. It argues that the courts of appeals have not struck an appropriate balance among the Garcetti holding, a public employee’s duty as a citizen to testify, and the government employer’s interest in maintaining control over its employees. It proposes that the best way to reconcile these competing interests is to take a closer look both at how the employee came to testify—as part of his job, under subpoena, or purely voluntarily—and whether that testimony was given on his employer’s behalf.