Public employees file large numbers of §1983 free speech retaliation claims in the federal courts on an ongoing basis. The employee typically alleges that she engaged in expressive activity protected by the First Amendment, and that in response the employer fired or demoted her or took other adverse action.
These cases often raise difficult legal and factual issues. Prior to the U.S. Supreme Court’s decision in Garcetti v. Ceballos,1 a public employee asserting a free speech retaliation claim had to establish that (1) she spoke on a matter of public concern (Connick v. Myers)2; (2) her free speech interests outweighed the government’s interest as employer in efficient government operations (Pickering v. Bd. of Education)3; and (3) her speech was a substantial or motivating factor in the defendant’s adverse employment action (Mt. Healthy Board of Education v. Doyle).4 These are often difficult burdens for the employee to satisfy. Then, in 2006, the Court in Garcetti, in an opinion by Justice Anthony M. Kennedy, held that the employee also had to establish that she spoke as a citizen and not pursuant to her official duties.
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