Over at Reason, Ed Krayewski has a story about a particularly outrageous Catch-22 at the intersection of police lawlessness and modern free speech law.
NYPD Officer Craig Matthews complained about an illegal quota system for stops and arrests. As anyone familiar with NYPD culture could predict, he experienced retaliation from his superiors for doing so. When he sued, the NYPD hit him with an argument that's outrageous but very likely legally correct: it's your job to report misconduct, so the First Amendment doesn't prohibit us from retaliating against you for doing so.
The Association of Lawless Broomstick-Fetishist Brown-Person-Groping Can't-Shoot-Straight Thugs has a point. Because their employer is the government, public employees have limited First Amendment rights to be free of employer retaliation for their speech. But in in Garcetti v. Ceballos the Supreme Court said that right protects speech on matters of public concern unless the speech is part of a job duty:
We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Thus in Garcetti the Court said a Deputy DA had no right to be free of retaliation for pointing out perjury in an arrest warrant application because doing so was his job. I explained how this doctrine works — and how courts have made an exception for professors at public colleges — in this post.
The result is that an entity like the NYPD can argue that its officers are required by their job to report unlawful activity by their superiors and fellow officers, and that therefore their act of reporting such misconduct enjoys no First Amendment protection. They may still enjoy protection under state or federal whistleblower laws, but not the First Amendment. (Whistleblower laws have their own issues, a subject for another post).
The district court's opinion dismissing Officer Matthews' complaint is here. The opinion is very likely correct under current Supreme Court precedent. I submit that it fails to confront adequately one massive problem with this doctrine: a public employer can claim it has a formal policy requiring public employees to report misconduct, while having an actual real-life policy of firing, retaliating against, and even brutalizing whistleblowers. Under this doctrine, as currently applied, the public employer's lie about its policy will protect it from First Amendment claims by whistleblowers. Whatever alleged obligation to report wrongdoing the NYPD may impose on its officers, functionally it has an unwritten doctrine of abusing whistleblowers. That doctrine is demonstrated in practice by case after case after case after case.
But Garcetti apparently permits the NYPD to indulge in a culture of lawlessness while claiming devotion to the law.