Labour Standard Enforcement through Economic Treaties (original) (raw)
2017, SSRN Electronic Journal
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.
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