« “Get to da chopper!” | Main | The Daily Memo - 5/30/06 »

Supreme Court Decision Update - Garcetti v. Ceballos

supreme1.jpgToday’s lone Supreme Court case, Garcetti v. Ceballos (PDF of the opinion) gives us one of the longest opinions to be published this term (coming in at 43 pages), although this is largely due to the presence of a dissenting opinion that runs longer than the majority opinion. The case deals with how First Amendment speech protections should apply to public employees speaking in their official capacity, and the Supreme say that these protections simply do not apply - that is, when a public employee is speaking in their official role as a government employee, their speech is not protected and their employer (the government) can discipline them for inappropriate comments.

QuizLaw Analysis: The majority has created a hard-and-fast rule that says if you’re a government employee talking about work-related stuff, you have no First Amendment protection, period. So to all you public employees out there - tread lightly.

Before we get into the legal meat of the case, here’s the background story. Ceballos, a Los Angeles deputy D.A., was contacted in 2000 by a defense attorney regarding a pending criminal matter. Specifically, the defense attorney wanted to let Ceballos know that he was challenging a search warrant on the basis that the underlying affidavit was inaccurate, and that he also wanted Ceballos to review the matter. Ceballos did review it and, deciding that the defense attorney was correct, called the deputy sheriff who was the affiant (that is, the person who made the original affidavit). Unhappy with the sheriff’s attempted explanation of what Ceballos saw as clear misrepresentations in the affidavit, Ceballos notified his superiors of the problems and prepared a memo explaining the problems and recommending that the criminal case be dismissed. Despite this memo, a second memo and a follow-up meeting, Ceballos’ supervisors decided to allow the prosecution of the criminal case to continue, pending a hearing on the defense attorney’s motion. Although Ceballos testified for the defense and explained his concerns over the affidavit’s accuracy, the motion was ultimately rejected by the court and the prosecution of the case continued. Following the hearing, Ceballos contends that he was subjected to several retaliatory actions by his supervisor, including being reassigned, transferred and denied a promotion (and the focus of most of the discussion is on the idea that these were in retaliation specifically for Ceballos’ first memo, as opposed to his subsequent memo or testimony at the hearing).

After his claims were denied in an employment grievance, Ceballos filed a lawsuit claiming his First and Fourteenth Amendment rights were violated when his employer retaliated against him for the memo. The D.A.’s office responded by arguing that their actions were not retaliatory and that they were simply called-for by the needs of the office. They also argued that the memo was not protected speech under the First Amendment and moved for summary judgment on this basis. The District Court granted the motion, agreeing that the memo was not protected speech because it was written pursuant to Ceballos’ duties as a governmental employee. The Ninth Circuit reversed this decision, relying on precedent which instructs the court to look at whether the speech was made by someone speaking “as a citizen upon matters of public concern.” Ignoring the question of whether Ceballos was “a citizen,” the Ninth Circuit held that the memo was protected speech because it was expressing Ceballos’ opinion on “a matter of public concern.” The Ninth Circuit then conducted a balancing test, concluding that Ceballos’ interest in the speech outweighed his supervisors’ interest in responding to, or retaliating against, that speech.

The Supremes, in a majority opinion written by Justice Kennedy and joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, reversed the Ninth Circuit’s decision. Kennedy’s take is that government employers are entitled to exercise rather broad discretion over employee speech and actions in order to efficiently serve the government employer’s public purpose. However, the employer is not entitled to impinge upon rights the employee holds as a private citizen. Thus, there are two inquiries the court must make in determining whether a public employee’s speech is entitled to protection: (i) was the employee speaking as a citizen on a matter of public concern; and (ii) if so, was the government employer adequately justified in taking actions which served to treat that employee differently than members of the general public?

Turning to the specific of this case, the majority finds that Ceballos’ memo qualifies as speech made in his official role as a government employee. The main reason for this decision is not that the memo was internal rather than public, nor is it that the memo addressed a subject specifically related to his employment. Rather, the main factor controlling the Court’s decision is that the expressions presented in the memo were made by Ceballos pursuant to his official duties - writing such a memo is part of his job. Thus, he was not acting as a private citizen and he is therefore entitled to no First Amendment protections. While the Court recognizes the importance of being able to expose misconduct and inefficiencies within government entities, it believes there are already sufficient checks and protections to provide for this, such as whistle-blower statues, labor codes, and rules of conduct.

Justice Souter drafted the longest part of today’s opinion, an 18 page dissent joined by Justices Stevens and Ginsburg. While Souter agrees that government employers need to be able to effectively implement policy and objectives, he believes this is outweighed by the interest in “addressing official wrongdoing and threats to health and safety.” Citing a Robert Frost poem, Souter explains that he believes drawing a categorical line between a person’s interest as a citizen and their interest as a public employee is folly. He agrees with the majority’s point that official communications have consequences in the office and that employers have a need to exercise some control. However, he does not believe that this need means that First Amendment protections should be categorically excluded. He also believes that the majority’s approach will lead to an increase of “factbound litigation” to determine, in any given situation, whether the speech at issue was made “pursuant to official duties.” Souter also doesn’t buy the majority’s argument that whistle-blowers statues and the like sufficiently provide for government oversight, finding that it merely all “add[s] up to a patchwork” because of the differences between various state and federal laws. Ultimately, Souter would treat these cases by always conducting a balancing test, weighing the employee’s speech interests against the government employer’s public interests. However, Souter would have this test favor the employers’ interests (i.e., favor a finding of no First Amendment protection), unless the speech touches on some matter of high importance (e.g., whistle-blowing, health and safety) and was made in a highly responsible way.

In addition to joining in Souter’s lengthy dissent, Stevens wrote a separate dissenting opinion to emphasize his disagreement with the majority’s answer to the question of whether the First Amendment provides protections to speech made by a government employee in his official capacity. While the majority answers “never,” Stevens would like to remind everyone that believes the answer should be “sometimes.” As discussed by Souter, Stevens similarly does not believe that there is a “categorical difference between speaking as a citizen and speaking in the course of one’s employment.” In fact, he thinks the majority’s opinion perversely fashions “a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”

Finally, Justice Breyer wrote his own dissenting opinion, because he doesn’t fully buy into the rules fashioned by either the majority or Justice Souter. He agrees that application of the First Amendment must be flexible, providing different protection to different categories of activity. He also agrees that when we’re talking about government employees’ speech, First Amendment protection should be limited to that protection which doesn’t get in the way with legitimate government interests. So if government employees are speaking as a citizen with regard to matters of public concern, Breyer believes the speech may be entitled to protection if it passes a balancing test. Thus, Breyer disagrees with the majority’s ruling for the same reason as Souter and Stevens, believing that the notion of no protection, ever, is too harsh. While it appears that Breyer is agreeing with Souter, he goes on to explain that he also doesn’t like the application of Souter’s balancing test, namely, that the government always wins unless the speech was on a matter of unusual importance and satisfying high standards of responsibility. This requires judicial activity, as it requires courts to conduct this balancing test, and he believes that this could interfere with the machinations of the government employer. So Breyer’s ultimate rule would be that First Amendment protection is afforded to government employee speech which is addressing a matter of public concern and which took place as part of the employee’s official duties if the specific situation calls for heightened constitutional protection and avoids “the risk of undue judicial interference with governmental management of the public’s affairs.” I have to admit that I am, personally, confused by this because this rule appears to still have the court sticking its nose into the government employer’s business, so I’m not really sure where Breyer ultimately wanted to go with this.