Washington Law Review


Talking Drugs: The Burdens of Proof in Post-Garcetti Speech Retaliation Claims

October 01, 2012 | 87 Wash. L. Rev. 777

Abstract:  Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court’s complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under “Pickering balancing,” and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the “Pickering balancing” burden, and that the Court should require employers to meet their burden with clear and convincing evidence. Further, when applying the speech retaliation test to law enforcement employees criticizing the war on drugs, the Court should rule that it constitutes speech as a “citizen on a matter of public concern,” and should abandon the quasimilitary rule when engaging in “Pickering balancing.”

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