ROSENTHAL AFTER BP 9/26/2008 12:32:03 PM ARTICLES THE EMERGING FIRST AMENDMENT LAW OF MANAGERIAL PREROGATIVE Lawrence Rosenthal* In Garcetti v. Ceballos, the U.S. Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties.” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself. This Article rejects the scholarly consensus on Garcetti. It argues that the critics’ claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived because Garcetti is not properly understood as a whistleblower case. Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability—an understanding with powerful roots in First Amendment jurisprudence. The Court’s opinion contains an account—concededly undertheorized—of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This Article endeavors to fill out that account. * Professor of Law, Chapman University School of Law. The reader should know that as Deputy Corporation Counsel for the City of Chicago, I litigated many of the issues discussed in this Article on behalf of a public employer. In particular, I successfully pressed on the U.S. Court of Appeals for the Seventh Circuit much the same position as was ultimately adopted by the U.S. Supreme Court in Garcetti v. Ceballos in Gonzalez v. City of Chicago, 239 F.3d 939 (7th Cir. 2001). My thanks are owed to Cynthia Estlund, Steve Krone, Kurt Lash, Matt Parlow, and Paul Secunda for sage advice on prior drafts. I must also thank Jeremy Katz, Christine Ludwiczak, Amy Song, and the staff of the Chapman University School of Law’s Rinker Law Library for highly capable research assistance. I am grateful as well for helpful comments made by my colleagues at a faculty workshop at Chapman University School of Law and the participants at the Colloquium on New Scholarship in Employment and Labor Law at the University of Colorado. 33 ROSENTHAL AFTER BP 9/26/2008 12:32:03 PM 34 FORDHAM LAW REVIEW [Vol. 77 The Article begins with an exploration of Garcetti. Part I demonstrates that Garcetti essentially abandons the Court's prior approach to the First Amendment rights of public employees by embracing a new inquiry that focuses on an identification of the scope of legitimate managerial prerogatives. Managerial prerogative, in turn, ensures that political officials have effective control over the functioning of public offices—and therefore are fairly held politically accountable for the operations of those offices. Part I concludes with a consideration of the future of public employee speech litigation in light of the emerging law of managerial prerogative. Part II considers the implications of this new law of managerial prerogative in another employment-related context—laws forbidding discriminatory harassment. There has been a powerful current of scholarly argument that the First Amendment places substantial limitations on the power of government to forbid sexually or racially harassing speech. At least four members of the Supreme Court have expressed significant support for this view. Part II demonstrates that under the concept of managerial prerogative embraced by Garcetti, governmental power to forbid harassing speech in the workplace is largely unconstrained by the First Amendment. In Part III, the Article places Garcetti within the context of a broader trend in recent First Amendment jurisprudence. Part III sketches the emerging doctrinal framework of this new First Amendment law of managerial prerogative and then, to illustrate the character of emerging doctrine, applies this framework to institutions of higher education and the concept of academic freedom—an issue noted but set aside in Garcetti. Part III argues that the emerging First Amendment law of managerial prerogative permits public universities to regulate academic speech in a manner that is consistent with scholarly norms as a means of achieving legitimate institutional objectives. TABLE OF CONTENTS INTRODUCTION............................................................................................ 36 I. MANAGERIAL PREROGATIVE IN GARCETTI V. CEBALLOS ........................ 40 A. The Decision............................................................................... 40 1. Facts..................................................................................... 40 2. The Court’s Holding ............................................................ 41 B. The Managerial Prerogative to Assess Subordinates’ Speech ... 44 1. The Character of Duty-Related Speech ............................... 44 2. The Categorical Nature of Managerial Prerogative over Workplace Speech............................................................... 48 3. The Rule Against Content Regulation and Public Employee Speech................................................................ 52 ROSENTHAL AFTER BP 9/26/2008 12:32:03 PM 2008] MANAGERIAL PREROGATIVE 35 4. Ceballos as a Whistleblower................................................ 55 C. The Future of First Amendment Workplace Litigation............... 60 1. Insubordinate Speech........................................................... 60 2. Speech Outside the Workplace ............................................ 64 3. Coerced Ideological Loyalty................................................ 65 4. Other Constitutional Limitations on Managerial Prerogative .......................................................................... 67 II. MANAGERIAL PREROGATIVE AND WORKPLACE HARASSMENT............ 69 A. The First Amendment Attack on Antiharassment Law ............... 69 1. The Argument Based on Content......................................... 71 2. The Argument Based on Overbreadth ................................. 76 B. Managerial Prerogative and Workplace Harassment................ 79 1. The Argument Based on Content......................................... 79 2. The Argument Based on Overbreadth ................................. 81 3. Title VII and Private Employers. ......................................... 83 III. THE EMERGING DOCTRINAL PARAMETERS OF MANAGERIAL PREROGATIVE AND ACADEMIC FREEDOM ....................................... 85 A. A Doctrinal Framework for the Law of First Amendment Managerial Prerogative............................................................ 86 1. The Threshold Inquiry ......................................................... 86 2. The Propriety of Viewpoint Discrimination ........................ 89 3. Managerial Prerogative as a Shield Against External Interference ......................................................................... 90 4. Two Illustrations of the Emerging Doctrine ........................ 91 B. Managerial Prerogative in Higher Education. .......................... 93 1. Managerial Prerogative and Public Education..................... 93 2. Managerial Prerogative and Academic Freedom................. 96 3. The Scope of Managerial Prerogative in the Public University.......................................................................... 101 4. Managerial Prerogative and Faculty Speech: The Case of Ward Churchill ............................................................. 105 CONCLUSION ............................................................................................. 110 ROSENTHAL AFTER BP 9/26/2008 12:32:03 PM 36 FORDHAM LAW REVIEW [Vol. 77 INTRODUCTION In Garcetti v. Ceballos,1 the U.S. Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties . .”2 The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.3 Here, for example, is Erwin Chemerinsky’s take: 1. 547 U.S. 410 (2006). Justice Anthony Kennedy delivered the opinion of the Court, joined by Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito. Dissenting opinions were filed by Justice John Paul Stevens, Justice David Souter, joined by Justice Stevens and Justice Ruth Bader Ginsburg, and Justice Stephen Breyer. See id. at 412. 2. Id. at 421. 3. For the negative reaction in the academy, see Michael P. Allen, George W. Bush and the Nature of Executive Authority, 72 BROOK. L. REV. 871, 933–34 (2007); Sonya Bice, Tough Talk from the Supreme Court on Free Speech: The Illusory Per Se Rule in Garcetti as Further Evidence of Connick’s Unworkable Employee/Citizen Speech