Before the United States Supreme Court decided Garcetti v. Ceballos in 2006, courts decided the question whether a public employee's speech was protected by the First Amendment as a matter of law. Courts asked whether the speech addressed a matter of public concern. If it did, then the speech was protected if the employee's interest in exercising her First Amendment rights outweighed the employer's interest in maintaining an efficient workplace. Garcetti introduced a new threshold question: whether the public employee spoke pursuant to her official duties. This seems to introduce a factual question to the public employee free speech inquiry: what exactly were the employee's job duties? However, most of the United States Circuit Courts of Appeals, including the Seventh Circuit, have continued to treat the inquiry as purely legal. In several cases, the Seventh Circuit has decided as a matter of law that an employee spoke pursuant to his job duties and affirmed summary judgment against him, even where he argued that his duties did not include making the kind of speech at issue. Because this reasoning leads to unfair results, this Note argues that the Seventh Circuit should treat the question of what a public employee's job duties were as a question of fact.
Sarah R. Kaplan,
Public Employee Free Speech After Garcetti: Has the Seventh Circuit Been Ignoring a Question of Fact?,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol5/iss2/6