Ceballos-- The Court Creates Bad Information Policy

JB

Marty has explained the details of the Ceballos opinion below and I won't repeat what he has to say here. Instead let me offer a few remarks on the larger meaning of the case.

The Court's employee speech cases rest on an unstable tension. On the one hand, government cannot punish people for expressing their views on matters of public opinion as contributions to public discussion. Nor can it punish people for criticizing the government and its internal operations. On the other hand, government employers have interests in workplace harmony and managerial efficiency. Statements by employees can interfere with both. What to do then, when government employees criticize government operations or make statements that annoy or embarrass their employer?

The Court has resolved this tension by dividing cases into two categories. Where the employee is not speaking on a matter of public concern, there is no first amendment protection. Where the employee speaks on a matter of public concern-- i.e., something that is a contribution to public discussion-- the Court balances the employee's rights against the damage to the employer's legitimate interests in managerial efficiency and workplace harmony.

Balancing tests are messy, ad hoc, and difficult to apply fairly. Ceballos tries to avoid the balancing test by carving out a new bright line rule. If the statement is made as part of the employee's duties, or in the employee's capacity qua employee, there is no first amendment protection at all. It is as if the statement were not a matter of public concern or a contribution to public discussion.

The result is that employees get some first amendment protection only if their speech is outside of their duties and responsibilities as employees. What this means is that the paradigm case of protection becomes a case like Rankin v. McPherson, in which a local sheriff's dispatcher said, upon hearing that President Ronald Reagan had been shot, but would survive, "if they go for him again, I hope they get him."

Note that the dispatcher had no special expertise about Reagan; rather, she was just blowing off steam and expressing her hatred of the President. She would receive some degree of First Amendment protection if the work of the local sheriff's department was not too greatly undermined by the fact that one of its dispatchers expressed support for what was, in fact, a very serious crime. As Justice Scalia said, the issue was whether she could "ride with the cops and cheer for the robbers." The Court concluded, 5-4 that the disruption was not sufficiently serious.

In the original decision in this line of cases, Pickering, the Court suggested that one reason for protecting employee speech is that employees, by their position and expertise, might have information and perspectives that would be particularly valuable contributions to the public in deliberation about public issues. Not all employees would, of course, but enough would that protecting employee speech would leverage their knowledge and expertise. (At the same time, the Court was worried that employees would use their assumed expertise to make false statements of fact that would be difficult for employers to rebut). Thus, we can see Pickering as a case about *information policy*; i.e., a set of decisions about how government should promote the creation and dissemination of valuable information throughout society. The Pickering test, as originally conceived, sought to promote the spread and diffusion of valuable information from people who would have reason to know about government policies and whether they made sense or were inefficient, unwise, corrupt, or illegal.

The problem with this vision was that it ran headlong into the government's interest in preserving workplace harmony and managerial efficiency. No employer likes an employee who makes him or her look bad, and this almost always causes strife within the workplace, since the employee who complains is almost always suggesting that someone else did a bad job, was corrupt, or in Ceballos's case, acted illegally.

Instead, the Court has retreated to a vision of employee speech cases where employees are protected only where they are least likely to be in a position to know what they are talking about, as in the case of Rankin v. McPherson.

After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer's internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, whatever they do, they are pretty much screwed. So the effect of the Court's decision is to create very strong incentives against whistleblowing of any kind. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don't have to reveal their sources).

I am sympathetic to the Court's desire to reduce the burden of ad hoc balancing by creating a bright line rule of no protection. But in this case, the Court's decision doesn't really create a bright line rule, because the boundaries of what is within an employee's job description may turn out to be quite contestable, and will be contested in future cases. Perhaps more important, the Court resolves the original tension in its doctrine by creating a rule that completely undermines the doctrine's information policy goals. All the doctrine does now is protect people like the dispatcher in Rankin v. McPherson, who is contributing nothing to information about the government's operations, but is just blowing off steam. Perhaps the dispatcher does deserve First Amendment protection, but the doctrine shouldn't be organized around her.