Garcetti would be unwelcome element in Nevada case

Tuesday, January 11, 2011

The U.S. Supreme Court will decide in Commission on Ethics of the State of Nevada v. Carrigan whether voting by elected officials is a form of free speech protected by the First Amendment. Let’s hope the justices don’t bring a 2006 case, Garcetti v. Ceballos, involving public-employee speech, prominently into the judicial mix.

The Nevada ethics commission is appealing a Nevada Supreme Court ruling in favor of Michael Carrigan, who as a member of the Sparks City Council challenged the constitutionality of an ethics law that said he should recuse himself from a vote because of a possible conflict of interest. Carrigan argues that council votes constitute free speech.

If the U.S. Supreme Court holds that the First Amendment is indeed in play, then the justices will also have to decide the appropriate level of constitutional review of the law. When the Nevada Supreme Court invalidated the law, it applied strict scrutiny, the highest form of judicial review, because it deemed voting by a elected official to be pure political speech — the core type of speech the First Amendment was designed to protect.

However, the ethics committee’s petition to the Court to take the case cited Garcetti three times, raising a red flag for the First Amendment. Other courts have held politicians’ voting to be analogous to public-employee speech. These courts applied the so-called balancing test from the Supreme Court’s public-employee case Pickering v. Board of Education (1968). Under Pickering, the employee’s right to speak on matters of public importance is  balanced against the employer’s efficiency interests.

The problem with applying the public-employee analogy to elected officials’ speech is that public-employee free-speech protection has been limited — if not eviscerated — by Garcetti, in which the high court ruled that public employees have no First Amendment protection when they speak in the course of their official job duties.

If you apply Garcetti to elected officials, the result is that they have no First Amendment protection. That’s because their job is to cast votes on legislation and other matters. There is no “balancing” at all — just a flat-out rejection of the First Amendment.

Some lower courts post-Garcetti have already applied this case to silence the speech of city council members. If the U.S. Supreme Court applies Garcetti to elected officials’ speech, the First Amendment goes out the window for them.

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