Balkinization  

Saturday, June 03, 2006

Trial Court Enjoins Unconstitutional Iowa Religion-in-Prisons Program

Marty Lederman

Judge Robert Pratt of the U.S. District Court of the Southern District of Iowa yesterday issued a judgment and a 140-page opinion declaring unconstitutional the State of Iowa's establishment of a rehabilitation program operated in the state prison system by the InnerChange Freedom Initiative, a substidiary of Chuck Colson's Prison Fellowship Ministries.

The court's opinion, which follows a very long bench trial, examines at great length the facts underlying the Iowa program. But the central facts are quite simple, and basically undisputed: In the court's words, "state funds were used intentionally to indoctrinate Iowa inmates [within the state prison], by a non-profit religious service provider preferred by the state in its selection process, into a form of the Christian religion in the belief that the indoctrination, combined with the communal rehabilitation model, would be of some help in their rehabilitation." The funded program is faith-intensive, and fundamentally religious in nature: "The overtly religious atmosphere of the InnerChange program is not simply an overlay or a secondary effect of the program—it is the program. There are no separate educational and religious functions in the InnerChange program as there were in Agostini . . . . Here, every activity—worship services, revivals, community meetings, daily devotionals—is organized and developed by the InnerChange program and is designed to transform an individual spiritually. Even the otherwise traditional rehabilitation classes themselves . . . have been turned into classes intended to indoctrinate inmates into the Christian faith."

Although the court's basic analysis is sound, there are several parts of the opinion's constitutional discussion that are a bit off-point, that may be controversial, and that detract from the central holdings, such as: (i) the court's nominal application of the three-pronged "Lemon Test" (a wooden and unilluminating "test" that, at this point, appears to be at most a placeholder in the Supreme Court's doctrine, and which IMHO obscures the important questions in most cases); (ii) an analysis of whether InnerChange is a "pervasively sectarian" program (a question that, in and of itself, almost certainly no longer has any purchase with the Supreme Court -- the important point in this case is simply that the secular and religious aspects of the program cannot be segregated: InnerChange is faith-intensive at its core); and (iii) a discussion of whether there is impermissible "entanglement." There's nothing especially wrong with any of those discussion, but they could easily have been eliminated, and the basic analysis would remain the same, to wit:

The court properly concludes that the Iowa program is unconstitutional for five of the six reasons I offered a few weeks ago for why a similar new federal prisons program is unconstitutional:

1. The program involves direct, and impermissible, financing of religious teaching and indoctrination. (The defendants argued that the money was only subsidizing the "secular" percentage of the program costs; but the Supreme Court, in cases such as Nyquist, Lemon, and Mitchell (the controlling O'Connor opinion) has expressly rejected such a "pro rata" allocation of religious and secular funding; and, in any event, the district court correctly found here that the secular and the religious are inextricably intertwined through the InnerChange program.)

2. Indeed, and wholly apart from the problem of funding, the program involves the state's own indoctrination of religion, because the officers and employees of InnerChange are, in this context, state actors.

3. The state has singled out a religious provider for favored treatment, and such favoring of religion is unconstitutional.

4. The program invovles a de facto denominational preference.

and

5. The program was gerrymandered to ensure that Prison Fellowships operates it.

In addition, the court found that the prison provides inmates with incentives to attend InnerChange.

Any one of these six reasons would be enough to invalidate the program. In the aggregate, the question isn't even remotely a close one.

Three other aspects of the opinion are noteworthy:

i. The court rejects one of the six grounds I offered for why such programs are unconstitutional -- namely, impermissible purpose. The court correctly notes that the state's primary purpose was to reduce recidivism rather than to inculcate religion. That's true, but there's a further purpose-based problem that the court does not discuss -- namely, that the government cannot specifically aim at religious transformation, as Iowa has done here, as a means of accomplishing legitimate secular ends.

ii. Second, apparently the defendants' primary defense of the program was that it was akin to a voucher program (see, e.g., Zelman, Zobrest, Witters), where the state merely subsidizes "genuine and independent private choice." The court properly explains at length why this is not a true "private choice" program. Moreover, even if it were a "private choice" program, it would still be unconstitutional, because the government itself may not engage in religious indoctrination, and the court correctly finds that the InnerChange program is state action.

iii. Finally, the court-ordered relief runs not only against the state, but also against Prison Fellowship and InnerChange, which are ordered to pay back more than $1.5 million in money that they have received from the state. In ordering this remedy, the court appears to have been strongly influenced by the fact that the constitutional questions here were not difficult ones, and that the defendants, "well-financed and sophisticated entities who know every contour of First Amendment law," had "retained experienced, knowledgeable legal counsel that should have been aware of the constitutional risks associated with state funding of InnerChange."

Friday, June 02, 2006

Law and Political Science

Mark Graber

For about a decade and a half, prominent students of public law have been criticizing the quality of legal scholarship, in particular the ways in which lawyers did and did not do empirical analysis. One criticism, most prominent in an influential law review article by Lee Epstein and Gary King in the Chicago Law Review, was that empirical analysis in law reviews tended to be shoddy, that law professors were unaware of basic principles of social science methodology. Another criticism, most prominent in Gerry Rosenberg's THE HOLLOW HOPE and perhaps my RETHINKING ABORTION, is that much legal analysis either invented convenient empirical facts or tended to deduce empirical facts from normative theories. Consider the claim that restrictions on abortion reflect the underrepresentation of women in legislatures. The claim may be true in the sense that elite women tend to be more pro-choice than elite men and elites are overrepresented in legislatures, but almost no legal work that made this claim acknowledged or even exhibited any interest in the substantial body of public opinion research indicating that women, if anything, tended to be slightly more pro-life than men.

The quality of legal scholarship has clearly improved as a result of these critiques. While the legal academy is still populated with many celebrity constitutional theorists, who would seeming rather turn down a Supreme Court appointment than cite a political scientist who studies public law (or actually stay up to date on the empirical facts underlying their theories), both the quality and quantity of law and social science conversations have improved. Political scientists regularly participate in legal conferences, and there is more engagement (as well as citation) with political science scholarship (witness recent works by Scott Powe. Michael Klarman, Jeff Rosen, Barry Friedman, Mark Tushnet, etc). Many law faculities have successfully raided political science departments, witness Mark Brandon at Vanderbilt Law, Andy Koppelman and Lee Epstein at Northwestern Law, and Kim Scheppele's stint at Penn Law. Nirvana has not yet been reached. In particular, I think there is a bit of "same old, same old," that in addition to paying closer attention to the work of a small number of senior scholars, legal scholarship would benefit by paying closer attention to such scholars as Julie Novkov, Pamela Brandwein, Jon Gould, Paul Frymer, George Lovell, Thomas Keck, Keith Bybee, and others I have no doubt forgotten. Engagement, in short, could be a lot broader. Still things are much better and the trends with respect to the legal academy are upwards.

Alas, the trends with respect to political science are clearly downwards. Today, the crisis of scholarship is in political science departments rather than in law schools. As what counts as legal scholarship has expanded, what counts as political science scholarship is narrowing. Fueled in part by a new generation of administrators who increasingly evaluate scholarship by the amount of grant funding for the research and in part by a new generation of political scientists more concerned with getting money than ideas, what constitues good political science is increasingly being determined by market considerations. Statistics are good because you can get grants to collect data. History is bad because you have to read the text yourself. Objectivity is when you have a second year grad student code opinions as legal or conservative. Making the decision for yourself on the basis on intensive textual analysis is subjective and, hence, not really scientific. One consequence of all of this is that rather than think about interesting problems in the world and read texts, too many younger scholars are being told to use those methods that promise "certainty, and "require expensive machinery and graduate students, so they can get funding. More than one law professor has complained that the result has been lots of statistics that either have little bearing on an important problem in the world or totally misconceives the problem in the world. Another consequence is that teaching in a law school has become increasingly attractive to a great many of us, precisely because the legal academy is becoming the place where ideas are judged on their merits, rather than on their economics. This situation is unfortunate. As humanistic political scientists either physically or emotionally leave their departments, fewer and fewer persons are left to train the next generation of scholars. The generation of political scientists that ranged from Howard Gillman to Christine Harrington to Jeff Segal has, in my judgment, been particularly creative. I fear, however, for the next generation and hope, that in addition to wooing us with both higher salaries and more supportive intellectual environments, law schools and law professors combat the increasing problems with political science with the same fervor that some of us sought to combat the problems we saw in legal scholarship.

Data Retention in the National Surveillance State

JB

The Justice Department has asked Internet companies to keep records of what sites individuals visit on the web and what search terms individuals enter in order to aid law enforcement, the New York Times reports.
The department proposed that the records be retained for as long as two years. Most Internet companies discard such records after a few weeks or months.In its current proposal, the department appears to be trying to determine whether Internet companies will voluntarily agree to keep certain information or if it will need to seek legislation to require them to do so.

Data retention is a crucial element of surveillance. One of the most significant protectors of privacy is amnesia. Ordinarily, much of what we do is forgotten, even if it is done in public or is otherwise easily captured. But if the government or private parities keep records of what we do, they can not only recall it, but trace our behavior over time. Hence if government is really serious about surveillance, it is not surprising that they want as much data retention as possible. One key question is who will bear the cost-- although data retention is increasingly cheap, it is not costless, and the Justice Department's request will put some burden on Internet companies.

Although Attorney General Gonzales initially offered enforcement of child pornography laws as the reason for requiring data retention, it soon became clear that the Justice Department wants to use the records for terrorism and general law enforcement. This is inevitable, and it is one of the risks of systematic data retention. Once Internet companies save data and make it routinely available to government, it is very hard for government to restrain itself from using it for many different purposes, not just simply the worst offenses. It would be like putting a very large and delicious cake in front of a very hungry person and expecting them not to want to take a bite.

It is sometimes said that data collection by computers does not invade privacy as long as no human being is watching. But when data is collected and retained, the fact that no human being is watching is irrelevant. Human beings always have the ability to view the data later on, and, moreover, to collate it, discovering features of our lives that were not obvious from isolated elements. This makes data retention a powerful tool of law enforcement, but also a powerful danger to individual privacy.


Thursday, June 01, 2006

Democracy vs. the Market in New Orleans

Stephen Griffin

New Orleans recently held a mayoral election and, to the surprise of many, the incumbent, Ray Nagin, was reelected. Nagin’s reputation is probably low nationwide, but in New Orleans he gradually won people back by persevering through the long months since Katrina and establishing ties with black voters. In general, however, the election showed you can’t beat someone by not offering an alternative. On most issues, Nagin’s opponent Mitch Landrieu, the Lt. Governor of Louisiana, did not disagree with Nagin. This also made it difficult for the election to serve as a referendum on what should be done about the many issues facing the city. Major issues, such as the ability of the city to provide services to all areas inhabited pre-Katrina and the parlous state of the criminal justice system, were not discussed. In the absence of substantial policy discussion, many agreed the election was about leadership.

The inability of the New Orleans mayoral election to focus on policy should sound familiar. The kind of policy discussion that occurs during American elections is rarely satisfying to policy wonks, academics, and the more responsible media commentators. Candidates are reluctant to engage in the kind of specific policy advocacy that could offend some voters. So they temporize, avoid detailed discussions, and emphasize the positive. Decisions are not made through the election, they are put off until after the election.

Perhaps there is a deeper reason why the election seemed to stay on the surface. People in New Orleans have been led to believe that they live in a sort of populist democracy. Who will determine how New Orleans will be rebuilt? Why, the people of New Orleans. From this perspective, all of the major decisions will be determined democratically. There is no doubt that civic participation is up post-Katrina. People search everything their elected officials say for signs and portents of the future. They expect their officials to solve the problems of the city. But perhaps as a decider of the future, democracy is a relatively poor cousin of the market. Many in the New Orleans area have already voted with their feet – they moved across Lake Pontchartrain to higher ground. Home insurance is difficult to obtain – the major insurance companies are pulling back from the coast. The tourist industry is having difficulty restarting.

At this point, for every challenge there is still a solution. The full weight of the coming federal homeowner bailout, for example, will not be felt until late summer or the fall. People will of course feel more confident about the future if no hurricane troubles the city by November. But the market will eventually make its own judgment on New Orleans, perhaps to the deep disappointment of many residents.

One final point about the mayor of New Orleans, who is being inaugurated for his second term today. Perhaps he was hurt somewhat by the account of Katrina in Douglas Brinkley’s recent book Deluge. Brinkley is a historian at Tulane, but this book is a work of journalism. If you want a good overview of Katrina, it is worth reading, but Brinkley’s view of Nagin is so negative that it is perceived here as over the top. According to Brinkley, Nagin’s performance during Katrina was the product of a nervous breakdown and the cold calculation of a political hack. It’s hard to see how both could be the case (and I’ve left out the part where Nagin might be a demon in human form). But Brinkley could have just left it with Nagin’s own testimony before Congress where he admitted a number of substantial mistakes. And if he did admit mistakes, how was he reelected? Perhaps because New Orleans voters saw even less competence during Katrina from their Governor and President.

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.

Wednesday, May 31, 2006

Who's Afraid of Ceballos?

Kermit Roosevelt

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.

Regime Politics and Non-Majoritarian Problems

Mark Graber

Howard Gillman, the founder of historical institutionalism in public law, is writing some very interesting stuff on the Empirical Legal Studies Blog. Today, he focuses on "regime politics," the view, espoused by many political scientists, that judicial review in practice more often serves than thwarts the will of elected officials in the dominant national coalition. My work is often cited as being in this tradition. But I am not sure. Below is a version of my comment on Professor Gillman's post.

I'm a big fan (what else is new) of the so-called "regime politics" literature and an even bigger fan of Howard Gillman's contributions (he "accidently" omitted his award winning essay in the 2002 APSR and his contribution to the recent Kahn/Kersch volume--both of which ought to be required readings in public law graduate courses). Still, I wonder whether "regime politics" correctly captures what is going on. Gillman is interested in "how much of the behavior of judges -- and (for that matter) how much of the development of law -- can be explained if we assume that courts often serve what Robert Dahl once called the "dominant governing coalition" of a polity." My own sense of the universe is that while some legal developments can be said to serve the interests of the dominant governing coalition (Jacksonians from all over the spectrum wanted the court to decide Dred Scott), more often than not, judicial review serves the interests of only some members of the dominant coalition. I think I can explain why some large number of Republicans welcomed Lawrence (either because they liked the result or wanted the court to resolve the issue), but I would not say it served the interests of the entire coalition. This was a point I tried to make, but did not make at all clearly in the very dated "Non-majoritarian" essay alluded to in the main post (boy, do I wish I could rewrite the thing in light of what others have taught me). Dominant national coalitions are quire frequently fragmented, that rather than understand judicial review as either thwarting or serving the interests of dominant national coalitions, we would better understand the practice as advancing some fragments of the dominant national coalition at the expense of others. (Think Kevin McMahon's story of how Democrats in the executive branch used courts to circumvent Democrats in the Congress on racial issues).

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.

Do Public Employees Have Any First Amendment Rights to Complain About Wrongdoing?

Marty Lederman

Cross-posted from SCOTUSblog.

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."

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