Having set the case for reargument to permit new Justice Samuel Alito Jr.’s voting participation, the Supreme Court decided in Garcetti v. Ceballos[FOOTNOTE 1] that public employees are not protected by the First Amendment for “expressions made pursuant to office responsibilities.”[FOOTNOTE 2]

Justice Anthony Kennedy’s 5-4 opinion for the Court leaves open whether government attorneys have a somewhat broader scope of protection because of “rules of conduct and constitutional obligations apart from the First Amendment”; and whether “speech related to scholarship or teaching” might be accorded greater latitude because of considerations of academic freedom.[FOOTNOTE 3] Public employees might also in some circumstances be able to structure their remarks so as to create a clear line between their expression and job-related duties. State whistleblower and civil service statutes may also be available. Even with these caveats, however, the Court’s May 30, 2006, ruling marks an important limitation on the scope of freedom of speech in the workplace.

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