Wednesday, November 11, 2009

California Constitution Does Not Offer Broader Protection For Public Employee Speech

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employee speech made pursuant to an employee's official duties enjoys no First Amendment protection. In Kaye v. Board of Trustees (here), the Court of Appeal has held that public employee speech enjoys no broader protection under the Free Speech Clauses of the California Constitution. The court held that neither the language nor the history of the California Constitution supports a broader interpretation, nor did the U.S. Supreme Court's decision in Garcetti diminish previously-granted rights or engender a firestorm of judicial and academic criticism. Moreover, the California courts have routinely followed federal decisions when it comes to public employee speech rights.

This decision raises an important issue that the California Supreme Court might well review. However, one issue is that Kaye is representing himself, which could make the Court reluctant to intervene. And it doesn't look like there were any amici in the Court of Appeal. Where are the ACLU and the public employee unions?

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