Pro-whistleblower Reform in the Post-Garcetti Era

Authors

Julian W. Kleinbrodt, University of Michigan Law School

Abstract

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick–Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern—-such as whistleblowers-—so long as the government’s administrative concerns did not outweigh the employees’ free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti’s problematic rule has forced courts to adopt odd exceptions; it has created perverse incentives and sits uncomfortably within established First Amendment doctrine. This Note encourages a move away from Garcetti by advocating for a tripartite balancing framework, whereby speech is sorted according to its importance rather than the speaker’s role. In the case of whistleblowers, this system would help ensure that the government can only restrict speech by government employees exposing public wrongdoing under extraordinary circumstances. This framework is more compatible with the rest of First Amendment doctrine and ensures the protection of speech that is most valuable to society.

Recommended Citation

Julian W. Kleinbrodt, Pro-whistleblower Reform in the Post-Garcetti Era, 112 Mich. L. Rev. 111 (2013).
Available at: https://repository.law.umich.edu/mlr/vol112/iss1/3