Balkinization  

Thursday, June 01, 2006

Ceballos and Public Speech: Response to Roosevelt

Marty Lederman

There isn't much, if anything, in Kim's post with which I disagree -- including the notion that "academic freedom" is unlikely to be a significant constitutional protection for teacher speech and scholarship (especially in light of the long history of viewpoint-based hiring and tenure decisions).

Kim is absolutely right that the speech that is most important from the perspective of self-governance is speech from the employees to the public, and therefore that Ceballos is not the most disturbing aspect of the Court's government-employee-speech doctrine. Kim writes that "as long as that speech [to the public] is protected, I'm not worried if intragovernmental speech is not." I might share this reaction, if the premise were plausible. But as Kim concedes, the Connick test does not provide very much protection for speech of employees to the public, because that is exactly the speech that is most likely to have an impact on the workplace, thus providing the employer with a strong Connick defense.

Indeed, the limitations of Connick are the least of the problem. These days, the majority of important employee speech to the public is specifically limited by contract, by rules restricting disclosure of classified information, by privilege rules (e.g., attorney-client privilege, deliberative-process privilege, Executive privilege, etc.), and by internal workplace rules, such as those restricting what Supreme Court clerks may disclose to the public. In cases such as Snepp and Morison, the courts have basically held -- not without reason -- that the First Amendment is categorically unavailable to "whistleblowers" when such contractual or classification or privilege rules are present. These rules, and the judicial decisions upholding them and rejecting constitutional defenses out of hand, threaten to render numerous important government processes -- not only cases of wrongdoing but also basic decisions about policy and process -- entirely impervious to disclosure, oversight, public debate and correction. [NOTE: Although I think that such rules are often far too overbroad, I do not think that employees should have the right to simply ignore them. Perhaps this perspective is a function of my tenure at the Office of Legal Counsel. Because of the culture of confidentiality in that office, I would never dream of publicly disclosing classified or attorney-client-protected information that I learned there. Nor do I think that's such a bad thing -- at least so long as the office itself has a presumption of transparency in its decisionmaking, a practice that OLC has followed on occasion and that many of us have urged it to reinstitute.]

This is a particularly dangerous trend in the federal Executive branch, in light of a increasing culture of secrecy characterized by, e.g.:

-- Grossly overbroad use of classification;

-- Aggressive investigation and punishment of leaks (see the recent Mary McCarthy incident, and the new subpoenas to the San Francisco Chronicle);

-- The refusal of the Administration to make public the legal opinions that have authorized the legally controversial tactics used in the current wars;

-- The resistance to congressional oversight, and the assertion of a constitutional power to ignore statutory notification requirements;

-- The assertion of a state-secrets privilege in many recent cases (dealing with, e.g., renditions, torture, the NSA wiretap and phone-records programs, etc.), even where the allegations are that the "secrets" that are classified are with respect to the existence of unlawful programs;

-- The extraordinarily broad arguments made by the SG in the Cheney "task force" case (see here and here), which essentially amounted to an assertion that Congress has virtually no power to regulate -- and thus also no power to oversee -- what occurs in the Executive branch, as long as the internal conduct can be said to have been in the service of the President's power to develop legislative recommendations, to make appointments, to seek opinions from his cabinet heads, to engage in foreign affairs, or to act as Commander-in-Chief;

-- The fairly narrow reach of FOIA and the federal whistleblower statute, at least as construed by the Executive branch and (for the most part) by the courts;

-- The Attorney General's recent in terrorem comments about how the press might be prosecuted for publishing leaks;

-- The current prosecutions in the AIPAC case for disclosure by non-employees of leaked information;

and

-- The alarming and grossly undereported recent decision of the Court of Appeals for the D.C. Circuit in Boehner v. McDermott, holding that disclosure or publication of publicly significant information is not protected by the First Amendment if the disclosure or publication is made with knowledge that it was unlawfully obtained or leaked.

In combination with the pro-employer tilt of Connick itself -- but cf. U.S. v. NTEU -- these trends do not bode well for what Kim rightly identifies as the public-employee speech "that is most important from the perspective of self-governance." And in that light, the Ceballos decision is disheartening, because where public disclosure of alleged government wrongdoing is so fraught with risk of sanction -- and is very unlikely to be deemed constitutionally protected -- the possibility of internal grievance was just about the only modest fallback option for a sincere and well-motivated whistleblower. For the Court now to tell such employees not to worry because the Pickering test might provide some constitutional protection if they go public with their complaints sounds like fairly cynical reassurance to me -- at least until such time as there is some indication from the Court that it is willing to put much more teeth into the constitutional protections for such public disclosure.

Comments:

Thanks, Marty. I agree with basically everything you say here. I may read Ceballos differently in terms of its implications for internal grievances. I don't think that using an internal grievance procedure is the performance of employment duties in the Ceballos sense, because there's no obligation to do so. An employer might set up a rule that says "use this grievance procedure before you go public," and that rule might not violate the First Amendment (though it would be subject to some sort of scrutiny), but even in that case I wouldn't think of the grievance as the performance of an employment duty. I read Ceballos to be limited to the case in which the employee's job description requires him or her to engage in speech by, for instance, submitting a memo. In that case, I think the employer should be allowed to say "I don't like the memo; you're fired." What happened to Ceballos may be very bad management, but I don't think it's a serious First Amendment problem.

More generally, I'm in favor of the kind of characterization that the Court is doing--distinguishing between speech as an employee and speech as a citizen, and so on. I'm in favor of it because I think it should lead us to the conclusion that some kinds of speech are fully protected--that it is possible for employees to speak purely as citizens in at least some circumstances. Unfortunately, of course, the Court hasn't gone that way, so maybe my view of Ceballos is making the best the enemy of the good.
 

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.

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.

Marty Lederman: Kim is absolutely right that the speech that is most important from the perspective of self-governance is speech from the employees to the public,

Why?
 

One can easily make the argument that we elect our representatives to do our bidding, thus, our representatives, who are the employer, should be able to promote efficiency in governance, because we thereby enhance governance of ourselves. Favoring the employer thus promotes democratic self-governance.
 

One can easily make the argument that we elect our representatives to do our bidding, thus, our representatives, who are the employer, should be able to promote efficiency in governance, because we thereby enhance governance of ourselves. Favoring the employer thus promotes democratic self-governance.

If We The People are the ultimate governors, then our representatives have an obligation to disclose relevant information to the public at large. They violate that obligation if they intimidate employees into concealing information. Employees who make such disclosures therefore promote democratic government.
 

Among the policy revisions the attorney general instituted were this[1] published December 9, 2005 eight days after the Washington press published the leaked 73-page article five review unit's unanimous conclusion that the Texas redistrict was outside of Voting Rights Act guidelines. This week a Loyola professor has published a collection of links in followup to testimony in congress encouraging the current process discussing VRA profiling updating to seize the day before the supreme court strips out some of the antiquated criteria as premised on senescent data.
Admittedly, voting is a long stride away from other speech issues, and the published 73-page study from the DOJ civil rights career attorney group was actually a leak rather than some more protected form of speech. Further complicating the matter: the SCOTUS opinion remains in the writing stage, argument having been heard.
Like the recent decision in FAIR, it looks like what you are describing for professor speech may be a widening process of disparity between the experience of teaching at a private institution versus teaching at a public university.
Ostensibly, at least these few topics are distinguishable from the added taint of some of the new policies which are embued with the opprobrium surrounding more difficult matters such as the datamining programs. With respect to the latter, I suspect congress knows volumes more than the public because of the numerous closed sessions to treat those matters most carefully.
Notes:
WaPo announcement of leaked DOJ memo: http://www.washingtonpost.com/wp-dyn/content/article/2005/12/01/AR2005120101927.html
Gonzales announcement[1] that Civil Rights group will no longer be allowed to write a summary on its reports, WaPo at http://www.washingtonpost.com/wp-dyn/content/article/2005/12/09/AR2005120901894.html
Hasen on trying to stir congress into serious redesign of 2007expiring sections of VRA: http://writ.news.findlaw.com/commentary/20060530_hasen.html
73-page DOJ VRA review group memo as leaked to WaPo: http://www.washingtonpost.com/wp-srv/nation/documents/texasDOJmemo.pdf
 

Mark Field: That makes no sense. Your argument is akin to arguing that because the Post Master General runs the Post Office on behalf of all Americans, he cannot discipline a mailman who tampers with the mail because the mailman reports to you and you like the mailman. A representative represents you, i.e., stands in your place and acts on your behalf. You don't get to micromanage the Post Office just because your taxes fund the printing of stamps. Your suggestion isn't democratic governance, it's crazystupidtocracy.
 

This comment is not on point except that it does concern Garcetti v. Ceballos. Does anyone have a thought on the following apparent inconsistency between Ceballos and Connick v. Myers? In Ceballos, on p. 6, the Court writes that, if the employee did not speak as a citizen on a matter of public concern, then "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. See Connick, supra, [461 U.S.] at 147." On page 147, however, the Court says that such speech, though not eligible for Pickering balancing, is not "totally beyond the protection of the First Amendment," though it is entitled to such protection only in "the most unusual circumstances," which the Court did not spell out.
 

A representative represents you, i.e., stands in your place and acts on your behalf. You don't get to micromanage the Post Office just because your taxes fund the printing of stamps. Your suggestion isn't democratic governance, it's crazystupidtocracy.

Your position pretty much eliminates democracy altogether. Government officials are agents. They are fiduciaries as to us (the people generally). They have a duty of disclosure; concealment is a wrong per se because it prevents us from determining if they are fulfilling the responsibilities we elected them to perform.

Government officials can discipline lower level employees in the proper circumstances. What they cannot do is hide their own misconduct under the pretense of "employee management".
 

Government officials are agents. They are fiduciaries as to us (the people generally). They have a duty of disclosure

1. Democratic governance in this country existed prior to the enactment of the APA and FOIA.

2. If what you are saying is true, then a whole host of generalized greivances that are not now justiciable would be so in federal court. Do you have a right to demand an accounting from Congress of each penny spent on every top secret CIA program on which taxpayer dollars are spent?
 

Mark Field is right as a general matter, but in practice, everything is not made clear to us.

In fact, we should invite some secrecy involving matters such as ongoing in-house investigations and so forth, while many matters are only truly understood by experts (including experts on the dynamics of a certain office).

Thus, bottom line, sometimes we trust our "agents" to act independently. In fact, a republic suggests that in some form they must, since it is separate from a democracy in which the public at large always makes the final decision on all matters.

(I simplify ... the two can be divided any number of ways, but this is one). So, I think sometimes being about to speak freely inside, so to speak, is more important than having some at times empty freedom to right an editorial or (more troublingly) anonymously leak things etc.

Thus, I really don't understand some on "our" side who find it strange that "we" are upset with the decision. I would also nod to Justice Breyer's comment that sometimes professional ethics factors in too. Here too the government as employer might overstep their bounds.

As referenced in Griswold and elsewhere, freedom of professional speech is an important aspect of speech too.

btw as to the final Cranky point, it is a telling one, but something of an exception to the rule. Generally, yes, an accounting is (by constitutional demand ... and Steven Aftergood would say this should apply even to general intel account numbers) open to the public.
 

Joe said it very well. Of course we (the public) don't expect to know every act of our representatives. At the same time, we have to be well-informed on their actions or we can't make intelligent decisions at election time. There's a tension here, with one end at greater participation by the electorate and the other at greater deference to the government as an entity separate and distinct from the people.

My original objection was to the claim that governmental secrecy promoted democracy. It's the opposite -- keeping secrets from the electorate is at the deference end of the spectrum, not the participation end.
 

My original objection was to the claim that governmental secrecy promoted democracy.

The point is your objection isn't always sound, and wasn't applicable in this case.
 

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