Fordham Law Review Volume 77 Issue 1 Article 2 2008 The Emerging First Amendment Law of Managerial Prerogative Lawrence Rosenthal Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Lawrence Rosenthal, The Emerging First Amendment Law of Managerial Prerogative, 77 Fordham L. Rev. 33 (2008). Available at: https://ir.lawnet.fordham.edu/flr/vol77/iss1/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Emerging First Amendment Law of Managerial Prerogative Cover Page Footnote 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. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol77/iss1/2 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 ofpolice perjury made in memoranda to his superiors by Richard Ceballos, a supervisoryprosecutor in the Los Angeles County DistrictAttorney's office, were unprotected by the FirstAmendment because "his expressions were made pursuantto 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 understandingof the FirstAmendment's commitment to free speech as a means of achieving political accountability-an understandingwith 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 accountablefor 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. FORDHAM LA W REVIEW [Vol. 77 The Article begins with an exploration of Garcetti. PartI 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 accountablefor 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 discriminatoryharassment. 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 FirstAmendment. 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 managerialprerogative 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 institutionalobjectives. TABLE OF CONTENTS IN TRODUCTION ........................................................................................36 I. MANAGERIAL PREROGATIVE IN GARCETTI V. CEBALLOS ................... 40 A . The Decision .......................................................................... 40 1. F acts ............................................................................... 40 2. The Court's Holding ........................................................ 41 B. The ManagerialPrerogative to Assess Subordinates' Speech ... 44 1. The Character of Duty-Related Speech .......................... 44 2. The Categorical Nature of Managerial Prerogative over W orkplace Speech .......................................................... 48 3. The Rule Against Content Regulation and Public Em ployee Speech .......................................................... 52 2008] MANAGERIAL PREROGATIVE 4. Ceballos as a Whistleblower .......................................... 55 C. The Futureof FirstAmendment 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 FirstAmendment Attack on AntiharassmentLaw ........... 69 1. The Argument Based on Content .................................... 71 2. The Argument Based on Overbreadth ............................ 76 B. ManagerialPrerogative 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 DoctrinalFramework for the Law of FirstAmendment 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. ManagerialPrerogative in HigherEducation ....................... 93 1. Managerial Prerogative and Public Education ................. 93 2. Managerial Prerogative and Academic Freedom ............. 96 3. The Scope of Managerial Prerogative in the Public U niversity .......................................................................... 10 1 4. Managerial Prerogative and Faculty Speech: