Balkinization  

Tuesday, May 30, 2006

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.


Comments:

A couple things:

1) If I were a government agency (and if I were intent on preventing exposure of my wrongdoing), I'd add "whistleblower" to everyone's job descritpion--regardless of their actual job--so that even the janitors would lose all their First Amendment rights when it came to criticizing the agency.

2) If there really are no first amendment protections, does that mean that it would be constitutional to criminalize dissent of these employees? My understanding is that some agencies (especially the military and CIA) are, at least to some extent, make up their own rules for what is allowed, at least in certain areas, so this might not even take an act of Congress.

I'm not a lawyer; am I interpreting those items correctly?
 

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

Not quite true. Just write what you want on a blog or a message board type system (like Google groups eg alt.test on Google Groups) ie write it on the internet. Send the person you're talking to a link via e-mail. Then when he clicks on the link, he sees what you wrote. What you wrote on the internet is public (the internet can be accessed worldwide). However, given an obscure enough link, hardly anyone but the person who you're talking to would even find the url. Even if someone could find the url, a half intelligent person could write the message in such a way as to make it incomprehensible to anyone not involved. Furthermore, since one didn't talk about the issue in the private e-mail (you merely sent a link to what you said), you didn't say anything about the issue in private.
 

disenchanted dave: On your first point, the Court wrote: "We reject ... the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions. ... The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes."

Nevertheless, your point is well taken. If the government agency did what you suggest more subtly than in your example, then the "practical" inquiry the Court refers to would have to be litigated, and the government agency might win.

On your second point, I think that you're right that it would be constitutional to criminalize dissent of employees done pursuant to their official duties. But I do not believe that federal agencies can do so on their own.
 

Let me elaborate on your second point. The reason that it would be constitutional to criminalize dissent of employees done pursuant to their official duties is that, if there is no First Amendment protection from civil punishment, then there's no reason there would be for criminal punishment. Nevertheless, it would be rather unprecedented, and might cause the 5-4 majority to tilt the other way. As for federal agencies' powers, yes, they make up their own rules, but they do so within the bounds of statutory authority, and I do not believe that they may create crimes or set the penalties for crimes on their own. I haven't done the research, however; perhaps another lawyer will cite a case on point.
 

"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."

Well, unless maybe we do so within 60 days of an election, and have the nerve to mention an incumbant's name in the process.

There isn't much left of our First amendment rights after the BCRA decision... Just privleges the government hasn't yet gotten around to revoking.
 

Hey, Brett, don't sweat it -- unless you're a corporation, BCRA doesn't affect your rights to say, or to broadcast, whatever you'd like within 60 days of an election.

The idea that "there isn't much left of our First amendment rights after the BCRA decision" is just poppycock. The basic requirement at issue -- that most corporations use PAC funds rather than treasury funds to influence federal elections -- has been in place since 1947, and was upheld by the Supreme Court in 1990. The sky hasn't fallen, and political discourse has hardly been silenced for lo these 59 years.
 

I think this case is but a very small step towards sanity in this area of the law.

I think there is a lot of hyperbolic handwringing by the official posters here and by some of the commenters.

I think the entire line of cases claiming that employment with the government is a property right and therefore has due process and takings clause protections are ridiculous and should be overturned.

I think a government employee should be subject to discipline and firing to the very same extent as any private employee in that same state. If that's employment at will, all the better in my opinion. These protections only serve to protect the under performing and not performing losers employed by the government, and that especially goes for tenure laws/customs and teachers.

Says the "Dog"
 

I think a government employee should be subject to discipline and firing to the very same extent as any private employee in that same state. If that's employment at will, all the better in my opinion.

That's the system we had for years. Civil service reform was instituted because that system was widely seen as inefficient and even corrupt. Going back to the bad old days doesn't seem like much of a solution.
 

Henry,

Thanks for your responses. I hadn't read the part of the decision that you quoted.

Perhaps I wasn't as clear as I should have been with my second concern. While the CIA probably couldn't create a new regulation that criminalized dissent, I believe they have some leeway in defining existing regulations. For example, I believe that violating the regulations of the DoD-written Army Field Manual is a criminal offense.

A somewhat improbable example of the kind of abuse I'm envisioning would be prosecuting an FDA official for some kind of medical ethics infraction if they criticize the agency's position on, say, birth control. More realistically, civilian officials at the Department of Defense could be prosecuted for some vague crime like "aiding the enemy" if they cause the Justice Department to investigate (and disrupt) a military program. It seems like first amendment protections would be handy in both of those cases.
 

After hearing the verdict on the Ceballos case, I couldn't help but think about Joe Wilson. If the Ceballos ruling had been in effect at the time the NYT published Joe Wilson's op ed, is it fair to say he would not be protected by the first amendment? Would he be protected by any other source?
 

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