Earlier this summer, the Connecticut Supreme Court issued two decisions that held that the free speech protections in Conn. Gen. Stat. Sec. 31-51q were limited by the U.S. Supreme Court’s decision in Garcetti v. Ceballos. To grossly oversimplify, an employee (public or private) whose speech related to their official job duties, was not entitled to protection.
In both cases, the Court declined to address a question that had been brought up late on appeal — namely whether the free speech protections under the Connecticut Constitution were broader than those in the First Amendment. In one case, Schumann v. Dianon, the court said that even applying a lower standard than that in Garcetti v. Ceballos, the employee’s speech was still not protected.
That the court side-stepped the issue wasn’t surprising; courts typically don’t like addressing issues that haven’t been thoroughly vetted at the trial court. But various federal courts that have looked at the issue have found that protections to be co-extensive, meaning the same under the federal and state constitutions.
Last week, however, a federal court decision in Connecticut called that into contention. Indeed, in a striking decision by Judge Underhill, the court denied the employer’s motion to dismiss saying “In short, I do not believe that Garcetti applies to those portions of section 31-51q that relate to rights protected by the Connecticut Constitution.” Thus, an employee’s speech that relates to her official job duties may still be protected speech.
The decision is hardly the end of the matter, but it does mean that the issue of whether the Connecticut Constitution will ultimately give more protection to private employees than the federal one is still in play — at least until the Connecticut Supreme Court chimes in.