Shibboleths and Ceballos: Eroding Constitutional Rights Through PseudocommunicationLaw Faculty Publications
AbstractRecently, the Supreme Court rendered an inexplicable First Amendment decision that has far-reaching effects on the way government is held accountable to the public. In Garcetti v. Ceballos, the Court determined that a government employer can retaliate against an employee for doing his job correctly, notwithstanding the Constitution, so long as the employer targets speech that was part of the employee’s official duties. Inasmuch as government employees are often responsible for reporting government misconduct and other matters of public concern, this opinion essentially leaves the public unprotected from the unbridled discretion of government supervisors. The possible motivations for this decision are several: the adoption of an increasingly popular management style that marginalizes employees; a free-market theory of governance that deregulates control of management; and, in actuality, the protection of current government supervisors from whistleblowers. All are symptomatic of the Court’s increasingly authoritarian tendencies. To make the Garcetti decision palatable, the Court majority disguised the fact that its holding was unsupported by the law by employing four basic rhetorical devices throughout the opinion: the Narrative (or Storytelling) voice, the Granfalloon voice, the Symbolic voice, and the Empty voice. All four voices have universal application so that, unfortunately, the Garcetti opinion is not an outlier but an instantiation of once and future cases. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.”
Citation InformationSusan Stuart, Shibboleths and Ceballos: Eroding Constitutional Rights Through Pseudocommunication, 2008 BYU L. Rev. 1545.