In a 5 to 4 opinion in Garcetti v. Ceballos (No. 04-473) authored by Justice Kennedy and joined by Justices Roberts, Scalia, Thomas, and Alito, the Supreme Court held that government employees who “make statements pursuant to their official duties” do not engage in speech protected under the First Amendment. The ruling involves a government lawyer’s claim for protection from retaliation under the First Amendment, but also has significant implications for the private sector, which is subject to many state and federal statutes that protect private sector employees from retaliation. The opinion probably will be influential to state and federal courts faced with the question whether private sector employees who are merely performing their daily jobs may be viewed as engaging in legally protected activities under state and federal anti-discrimination and whistleblower protection statutes.
