Wednesday, May 31, 2006
Who's Afraid of Ceballos?
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.
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.
Perjurious (false) affidavits are unavoidable facts of life and likely far more common than generally believed. Their prosecution is, sadly, essentially nonexistent.
Now we have the situation where one prosecutor who dared to stick his neck out by objecting to it internally in his DA office got severely reprimanded by the SC nonetheless.
Alito at his best, I think.
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.
Kermit Roosevelt: 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.Post a Comment
Why not? It's a safe harbor that protects the listeners' rights of employers. It seems like this is exactly what you claim to favor.