an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As a general matter, a state cannot deny someone public employment because of their private speech. What then, is the First Amendment protection for the speech of a public employee? The Supreme Court has developed a distinct doctrine addressing that question, in which the canonical cases are Pickering v. Board of Ed. of Township High School Dist. and Connick v. Myers. As a general matter, the Pickering/Connick test sets out a two-part inquiry: First, was the employee's speech on "a matter of public concern"? If not, then the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If, however, the speech was on a matter of public concern, then the First Amendment question is whether the government entity had an adequate justification for treating the employee differently from any other member of the general public. The state has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the state employer's operations.
In almost all of the cases in this line, the speech in question had clearly been made in the employee's private capacity. Somewhat surprisingly, the Court had never quite decided whether "official capacity" speech -- speech an employee makes qua employee -- is entitled to even the modest First Amendment protection of Pickering/Connick.
Today the Court held that most, if not quite all, of the speech made in a public employee's official capacity is entitled to no constitutional protection at all. The case involved a deputy district attorney, Ceballos, who worked in the Los Angeles County District Attorney's Office. Ceballos discovered what he considered to be serious misrepresenations in an affidavit that his office had used to obtain a search warrant -- and he did what an employee was supposed to do in such a situation: Not announce it to the public, but instead bring the alleged wrongdoing to the attention of his supervisors. Those supervisors disagreed with Ceballos's concerns; and Cebellos claimed that he was thereafter subjected to a series of retaliatory employment actions.
The Court issued its opinion today in Garcetti v. Ceballos, No. 04-473, originally argued in the October sitting and then reargued after Justice Alito joined the Court. Justice Alito's was the fifth vote in favor of reversal (although we don't know for certain whether the judgment or opinion would have been different with Justice O'Connor participating). Justice Kennedy wrote the majority opinion, which the Chief Justice and Justices Scalia, Thomas and Altio joined. As I had predicted, Justice Souter -- who likely was assigned to write the majority before Justice O'Connor's retirement -- wrote a dissent, joined by Justices Stevens and Ginsburg. Justices Stevens and Breyer each also filed dissenting opinions.
The looming question in the case was not so much the outcome but the Court's rationale -- and, in particular, the question whether the Court would hold that a government employee's speech in her "official capacity" is entitled to no constitutional protection -- not even of the modest Pickering/Connick variety. The Solicitor General urged the Court to hold that "the First Amendment has nothing to say about actions based on [a] public employee's performance of his duties."
Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development.
Or perhaps not quite. In order to issue such a holding, the Court would have had to distinguish or overrule Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), which provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices. Citing Givhan, Justice Kennedy writes today that "[t]he First Amendment protects some expressions related to the speaker’s job," even when made within the workplace. But, he argues, "[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy."
So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers. Does today's decision therefore give employees an incentive to go outside the established channels -- to take their concerns to the newspapers, instead of up the established chain to their supervisors? Justice Kennedy has two responses to this perceived "doctrinal anomaly":
First, "[t]his objection misconceives the theoretical underpinnings of our decisions. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, see Pickering, 391 U. S. 563, or discussing politics with a co-worker, see Rankin, 483 U. S. 378. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees."
Second, the practical concern is overstated, according to the Court, because if "a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public."
And what does this decision protend for the constitutional rights of teachers in their classroom speech and in their scholarship? The answer is not yet clear. Here's Justice Kennedy again: "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." Posted
by Marty Lederman [link]
So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection
Why should they be?
Why is that a Constitutional issue? Why isn't it an issue of public policy?
If the people think the DA's Office is behaving poorly, they have redress at the ballot box, no? Why does everything have to be a Federal Case?
Everything does not "have" to be a Federal case. But when individuals in government use their power to SILENCE employees whose job it is to expose waste, fraud, crime, mismanagement, etc.--often because the employers are the ones responsible for the things that should be exposed--the 1st Amendment SHOULD provide such protections. The fact is that MOST Circuit Courts, prior to this Ceballos case, DID offer such protection. Unfortunately, we have a very corrupt and sinister majority Supreme Court that serves the interests of crime, corruption, waste, fraud, etc. and wishes to protect the businesses and government agencies and their employees who engage in said activities.