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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Most of the commentary on the Ceballos decision has been negative, including posts by Jack and Marty here. I confess I'm not that troubled by the decision. I think that it takes essentially the right view of the problem of public employee speech. At the least, to damn with faint praise, it's not the worst thing about the Court's employee speech jurisprudence.
The reason employee speech presents such a difficult problem is that the participants are occupying multiple roles, and the different roles possess very different rights and powers. The government as sovereign generally may not punish citizens for the content of their speech, but the government as employer may demand that employees do the job they were hired to do, and insofar as effective performance of that job requires saying some things and not others, it can control their speech. Correlatively, individuals as citizens retain their rights to free speech, but as employees they are subject to job-related sanctions such as dismissal if their speech compromises their performance.
If we think of the issue this way, the majority opinion in Ceballos is essentially doing nothing more than following a syllogism. The government can fire employees based on job performance. When employees speak as part of their employment duties, they are performing the job. Therefore, they can be fired for such speech.
I take this to be quite a narrow holding. Marty notes that the Court did not purport to overrule Givhan v. Western Line Consol. School Dist., 439 U.S. 410 (1979), which held that an English teacher's complaints to a school principal about racism in hiring were protected speech, and I think Justice Kennedy's treatment of that case shows the limits of Ceballos. The controlling factor, Kennedy says, is that Ceballos' expressions "were made pursuant to his duties as a calendar deputy." Thus, Ceballos does not mean that employees get no protection for speech made on the job, or to their employers. I would not even read it to mean that speech made in the course of invoking an internal grievance procedure is unprotected, for those procedures are optional. It means only that when part of an employee's job is the production of certain speech, he or she can be dismissed if that speech is deemed unsatisfactory.
What is so wrong with this reasoning? One response has been that it creates strange anomalies: an employee whose duty it is to uncover wrongdoing and report it to superiors receives no protection for doing so, while an employee whose duties are different does. And the employee whose duty is to uncover wrongdoing is protected if he writes a letter to the editor of a local newspaper, but the same speech is not protected if submitted to a supervisor in a memo.
But why are these anomalies? They follow quite naturally from the distinction between employee speech and citizen speech. And I do not find that distinction as artificial or formal as others have. I think it does a reasonable job of tracking the difference between speech that is important to the First Amendment and speech that is not. From the perspective of speakers, employee speech to employers is likely to be low value. Employee speech, when it is part of an employee's job description, is both compelled and constrained by the job description. It is unlikely to be a significant source of self-actualization, except in the rare case of employees (such as academics, of whom more later) whose job description does not place content-based restraints on their required speech. (When such speech is not part of the job description, it is appropriately conceptualized as a citizen speech to the government, which should get more protection; and this is how I would think about Givhan.)
From the perspective of listeners, which I tend to favor in thinking about First Amendment issues, employee to employer speech is also low value. Public employees are certainly well-placed to know what is wrong with the agencies they work for, and their speech to the public has great First Amendment value. But their speech to employers does not. That speech is valuable in terms of helping the employer; it can contribute greatly to government efficiency, and it arguably should be protected by statute. But governmental efficiency is not a First Amendment value--indeed, my main objection to the Court's employee speech jurisprudence is that it places too high a value on government efficiency, at the expense of real First Amendment values like public oversight of government.
Another problem, Jack suggests, is that the upshot is that First Amendment protection goes to the wrong speech--to the less informed employees who are speaking about matters outside their expertise. I agree with Jack's suggestion that there is relatively little First Amendment value in speech like that at issue in Rankin v. McPherson, 483 U.S. 378 (1987) (the sheriff's dispatcher who, commenting on the Reagan assassination attempt, said "If they go for him again, I hope they get him."). But as I said above, I also think there is little First Amendment value in even an expert report submitted as part of an employee's duties. (Again, this is not to say that there isn't great value in terms of possible contribution to governmental efficiency, just that it has little to do with either self-actualization or democratic self-governance, which are the standard First Amendment desiderata.)
What about Ceballos' implications for academic freedom? I think that it's actually quite hard to make out a right to academic freedom that protects employees of state universities in a manner similar to the protections citizens enjoy. After all, they are judged on the content of their expression, and sometimes fired for it, when they undergo tenure review. If they are not fired, tenure is what protects them, and I don't think that the First Amendment requires a tenure system in public universities. If state universities abolished tenure and started making promotion or retention contingent on approved viewpoints, that would certainly destroy their academic reputations, but I don't think that Party Line University is unconstitutional. (Perhaps the best argument on the other side is that some job descriptions effectively create public forums, within which the government cannot engage in certain kinds of discrimination. But if the government wants to create a university that promotes only its own viewpoints, I think it can do so.)
What we should be concerned about, I think, is not Ceballos so much as the whole Connick-Pickering regime under which employee speech never receives full First Amendment protection but is protected at most by a relatively anemic balancing test. This approach chills the speech that is most important from the perspective of self-governance: speech from the employees to the public. As long as that speech is protected, I'm not worried if intragovernmental speech is not. I'm not even worried if on-the-job speech that isn't part of an employee's duties isn't protected--that is, I think we could say that the speech in Rankin isn't protected with very little cost to the First Amendment. What is needed (and this is an argument I made in my student note some years ago) is a safe harbor where employee speech can be fully protected subject to some narrow exceptions for speech that harms working relationships (e.g., criticism of direct superiors) or that suggests the employee is somehow unfit to do his or her job (e.g., racist speech by a police officer). With such a safe harbor (in my note, I suggested off-the-job speech), we can be relatively confident that the speech that does have value from the First Amendment perspective will not be suppressed. Posted
by Kermit Roosevelt [link]
But how do you propose to create your last para. safe harbour? Can't an employer create a job description that, as Prof. Balkin says, effectively precludes public information dissemnation by the employee? Almost every job description I know allows for substantive subjective evaluation by the supervisor whose terms are not specified ex ante.
This is way too splittery to this layman at least.
Consider the very facts of this case. Ceballos was charged with reviewing the integrity of the affidavit submitted by cops in support of their search warrant request. He concluded that the affidavit was perjurious and stated so in his internal memo. For this he was disciplined by his supervisors.
The SC says now that this is fine because employees are not free to express themselves freely in internal memos. Apparently they can only write what will be acceptable to their supervisors.
This, on the face of it, is total nonsense. Ceballos not only had the right to fully express himself in his professional capacity, it was his responsibility too. What was he supposed to do? Not to state that according to his best professional judgment the affidavit was perjurious? To lie that everything was nice and clean as apparently expected by his bosses? And continue to lie in court when interrogated by the defense?
I could understand limitations on his right to go public with his conclusions w/o this being first cleared by his bosses. But the court is saying that would be fine, it is only in his communications to his bosses that he doesn't have the right to honestly state his conclusions.
One of the most misguided opinion issued by the Court in recent times and on top of it highly unfortunate in that it will have major chilling effect on people working in the government.
If Ceballos had first gone public with his views, that would have been okay under the First Amendment? If after doing so, Ceballos had been called in by the DA to explain why he went public rather than complain "in house" under established procedures and the DA then decided not to advance or promote Ceballos, that would not have been okay? Could the DA take the position that Ceballos had failed to perform his job by not bringing the matter "in house"? Is there a "Catch-22" here? Could Ceballos have properly declined to discuss his "public" statements with the DA under the First Amendment and avoid being disciplined? How has this decision by the Supreme Court helped the public to better understand the First Amendment? It seems as if the public employee is damned whatever she does, which of course benefits the public employer but not necessarily the public.
Like Prof. Roosevelt, I am not as troubled by the (relatively narrow) holding at issue as were Marty and Prof. B.
What bothers me more is the appearance that an internal whistleblower identifying highly embarassing information was fired for refusing to roll over.
I don't think that's a First Amendment problem. First Amendment rights are about speech, not about internal governance, as Prof. KR notes. What it is, is a government problem.
If Ceballos had gone wide, he'd be safe. That's well and good; truly explosive stuff should go wide. If Ceballos had stumbled upon this outside of his job description, equally that should be a matter for 1A protection.
But if it's his job... if this was a matter of candor owed as an attorney, say, to a tribunal, say, then the appropriate oversight lies elsewhere.
Who else got fired as a result of this massive screwup? Who lost their golden parachute? Who got disbarred or otherwise disciplined? If the facts of this case got taken care of, I don't mind the law of this case.
I don't think that there should be the possibility of a Catch-22 where employers can require employees to submit grievances internally and then fire them for it. Submitting such a grievance doesn't fit my understanding of performance of employment duties--it's not part of the job in the way that Ceballos' memo was. Likewise, I don't think that employers should be able to require employees to make some statement (e.g., explain why they went public) and then fire them for that statement on the theory that it's job-related. I doubt that the Court would allow that, though if it did I would agree that this is a more troubling decision. (But remember that if the employer is looking for pretextual reasons, he or she can fire an at-will employee for anything--wearing a tie the employer doesn't like--so forcing speech in order to use it as a basis for firing is unnecessarily devious.)
Employers generally can create confidentiality requirements, though presumably at some point those would raise First Amendment problems. But protecting speech to the employer doesn't solve the problem those create--the employer can just ignore the speech, and the public is no better off. So my basic point is that we should be focused more on speech to the public, where I think the Court's approach is more seriously wrong and harmful to First Amendment values.
The fallacy that going "wide" is well protected under the First Amendment in US workplaces governmental or private has been fully and brilliantly debunked in the latest Lederman post. The SC severely misleads if they claim otherwise.
I agree however with the post above that this is not a 1st Amendment issue, per se. This is a clear case of arbitrary and capricious harassment by government supervisors for performing one's job ethically, honorably and per book. I'm sure the SC knows how that should be properly handled in our legal system. Shame that they decided not to share it with us.