That's the name of this article by Caroline Flynn. Here's the abstract:
The
First Amendment prohibits the government from leveraging its employment
relationship with a public employee in order to silence the employee’s
speech. But the Supreme Court dramatically curtailed this right in
Garcetti v. Ceballos by installing a categorical bar: if the public
employee spoke 'pursuant to her official duties,' her First Amendment
retaliation claim cannot proceed. Garcetti requires the employee to show
that she was speaking entirely 'as a citizen' and not at all 'as an
employee.' But this is a false dichotomy – especially because the value
of the employee’s speech to the public is no less if she is speaking
pursuant to mixed motivations. A recent Second Circuit case,
Jackler v. Byrne, suggests an exception to Garcetti’s categorical bar.
Because the public employee’s speech in Jackler had a civilian analogue –
that is, because an ordinary citizen could speak in the same manner and
to the same audience – the court allowed the employee’s claim to
proceed. The Second Circuit’s exception contradicts Garcetti, but it
nonetheless furthers significant First Amendment values while adequately
protecting public employers’ interest in controlling employee speech.
As such, the Supreme Court should adopt the civilian analogue exception
to ameliorate Garcetti’s problematic rule.
