US Supreme Court Review : Garcetti v. Ceballos
Ellis & Winters
This article previously appeared in The Constitutionalist (Sept. 2006). It is reprinted with permission.
By Stephen D. Feldman
In Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), the Supreme Court, in a 5—4 decision, held that speech uttered by a government employee pursuant to his official duties does not receive First Amendment protection.
This significant decision creates a bright-line rule in an area previously governed by a balancing test. That test evaluated whether the relevant government entity had an adequate justification for treating the speech of an employee differently than that of an ordinary public citizen when the employee spoke “as a citizen on a matter of public concern.” The Garcetti case revisited what the phrase “as a citizen” means.
More specifically, the question in Garcetti was whether a public employee who speaks as part of his job duties is speaking “as a citizen.”
An L.A. Story
Garcetti arose from the conduct of Richard Ceballos, a calendar deputy for the Los Angeles County District Attorney’s Office. The district attorney was Gil Garcetti, who was the Los Angeles County district attorney during the prosecution of O.J. Simpson.
In 2000, a defense attorney contacted Ceballos and asked him to review an affidavit that led to a critical search warrant. The attorney believed the affidavit was inaccurate. After investigating the matter, Ceballos concluded the affidavit contained serious misrepresentations.
Ceballos told his supervisors what he found, and he later prepared a disposition memorandum that explained his concerns and recommended dismissing the case. Ceballos also submitted another memorandum based on his conversation with the warrant affiant, a deputy sheriff.
Ceballos’s statements prompted a “heated” meeting that included Ceballos and his supervisors.
Ceballos subsequently testified for the defense on his findings. The trial court rejected the warrant challenge.
Ceballos was “rewarded” for his work with a transfer to another courthouse and the denial of a promotion. After exhausting internal grievance procedures, Ceballos filed an action under 42 U.S.C. Section 1983 that claimed Garcetti’s office violated his First Amendment rights by retaliating against him for his memorandum.
The Ninth Circuit held that precedent compelled the protection of Ceballos’s speech, but Judge O’Scannlain specially concurred to emphasize a distinction between “speech offered by a public employee acting as an employee” and speech “spoken by an employee acting as a citizen.”
Judge O’Scannlain urged that precedent be reexamined because public employees “have no personal interest” in speech made while they carry out their routine employment obligations.
The Court Explains How to Act As a Citizen
Writing for the Court, Justice Kennedy adopted the framework of the special concurrence suggested by his former Ninth Circuit colleague.
When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes. Accordingly, “the Constitution does not insulate their communications from employer discipline.”
To reach this holding, the Court had to carve an exception to the balancing test enunciated in Pickering v. Board of Education, 391 U.S. 563 (1968). The balancing test recognizes that, to efficiently provide public services, government employers need a “significant degree of control over their employees’ words and actions.” On the other hand, “a citizen who works for the government is nonetheless a citizen.” By considering these competing interests, the Pickering framework aims to promote the individual and societal interests served when employees speak as citizens on matters of public concern while also respecting the needs of government employers.
In Pickering, the Court rejected a school board’s attempt to limit the opportunity of teachers to contribute to public debate. There, a teacher wrote a letter to a local newspaper that addressed the funding policies of his school board. Because the teacher’s speech did not impede his “proper performance of his daily duties,” the school board’s interest in limiting the teacher’s contribution to public debate was no greater than the board’s interest in limiting the same speech from any member of the public. The teacher’s speech received First Amendment protection.
In Garcetti, the Court recast Pickering as a two-step inquiry rather than a simple balancing test. First, did the employee speak as a citizen on a matter of public concern? If not, the speech is not protected, and the employee has no prima facie claim under Section 1983. Second, if the employee spoke as a citizen on a matter of public concern, did the government entity have “an adequate justification” for treating the employee differently than an ordinary citizen? Ceballos argued that only this second step–what was known as “Pickering balancing”–governed his case.
The Court stopped its analysis with the first inquiry. Because Ceballos wrote his memorandum pursuant to his job duties, he did not speak “as a citizen,” even if his speech was on a matter of public concern. Whether Ceballos had a personal interest in his speech was “immaterial.” Speech uttered as part of one’s job is, according to the Court, unrelated to “any liberties the employee might have enjoyed as a private citizen.”
Before Garcetti, the Court had not expressly endorsed the notion that “speaking as a citizen” and “speaking in the course of one’s employment” are distinct concepts. In dissent, Justice Stevens bluntly called the distinction “quite wrong.” Justice Stevens’s concern, also echoed in a dissent by Justice Souter, is that First Amendment protection for “exactly the same words” should not hinge on whether they fall within a job description.
Instead, according to Justice Souter, Pickering should be the sole guidepost. He emphasized that the need for balancing may be heightened, not diminished, when an employee speaks pursuant to his duties because the public value could be especially great. The value to the individual may be heightened as well when the individual speaks pursuant to job duties because “citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties.” Justice Souter even cited the “Career Opportunities” page of the Los Angeles County District Attorney’s Web site, which advertises that its work “‘provides the personal satisfaction and fulfillment that comes with knowing you are contributing essential services to the citizens of Los Angeles County.'”
The Court, however, insisted that its holding does not prevent government employees from participating in public discourse. At oral argument, Justice Scalia suggested that an employee in Ceballos’s position “could go public” because “[t]he press would love it.” The critical point, wrote the Court, is that their right to engage in such discourse “does not invest them with a right to perform their jobs however they see fit.”
Had the Court adopted Ceballos’s position, it anticipated “permanent” and “intrusive” judicial oversight of communications among government employees. In so reasoning, the Court rejected the argument of Ceballos’s counsel, who explained at oral argument that adding a job-duty element to public employee free-speech cases will add greater complexity to cases that are rarely decided on the pleadings. The Court left lower federal courts with little guidance in applying the new jobduty element, and it refrained from articulating “a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” According to the Court, “[t]he proper inquiry is a practical one.” Time will tell how the lower courts will apply this amorphous standard. As Justice Souter pondered in dissent, “Are government nuclear scientists’ complaints to their supervisors about a colleague’s improper handling of radioactive materials made ‘pursuant’ to duties?”
Blowing the Whistle on Whistle-Blowing Reasoning
Justice Souter was also critical of the Court’s notion that state and federal whistle-blowing statutes make First Amendment protection superfluous.
For example, in Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), the First Amendment protected a plaintiff schoolteacher’s criticism of her school district’s unconstitutional hiring bias. This sort of speech, wrote Justice Souter, is not classic whistle-blower material. The Court did not suggest that its holding overrules Givhan. Instead, it cited Givhan as an example of a situation where an expression made at work deservedly received constitutional protection.
That did not satisfy Justice Souter, who described whistle-blower protections as “patchwork.”
Statutes differ in terms of whom they protect (sometimes just state employees, other times municipal employees), whether the employee must first confront his or her boss, and the standard of proof (in federal court, that standard is “irrefragable proof”). The consequence is that government employees who express the same thoughts related to civic concerns will get different whistle-blower protection depending on what jurisdiction–local, state, or federal–employs them.
Never Say “Never” Again
In dissent, Justice Breyer interpreted the Court’s opinion to hold that the Constitution “never” insulates the speech of public employees made pursuant to their official duties. This holding, he wrote, “is too absolute.”
In Justice Breyer’s view, the government’s interest in forbidding Ceballos’s speech was weak.
His speech was “professional speech,” subject to independent regulation (for example, by the California State Bar), and, Justice Breyer wrote, the profession’s canons reduce the chance that courts will interfere with the government’s authority to manage its work. In addition, Ceballos bore a constitutional duty to communicate exculpatory evidence to the defense, thereby diminishing the likelihood of court interference of the government’s interest.
Application of Garcetti to Scholarship and Classrooms
The Court carefully distanced itself from any implication that its new standard applies to academic scholarship or classroom instruction.
Expression in these realms may “implicate additional constitutional interests that are not fully accounted for by this Court’s customary employeespeech jurisprudence.” These words are a nod to Justice Souter’s concern that the Court’s opinion “imperil[s] First Amendment protection of academic freedom at public colleges and universities, whose teachers necessarily speak and write ‘pur-suant to official duties.’ “
With this door expressly left ajar, a public university’s retaliation against a professor may be the next opportunity for the new Garcetti doctrine to be tested or expanded. Consider, for example, a recent threat by Wisconsin lawmakers to fire a professor of Islamic studies at the University of Wisconsin-Madison for suggesting that the United States government orchestrated the attacks of Sept. 11, 2001. Until that or a similar case reaches the Court, it is “irrefragable” that constitutional law practitioners and commentators, as well as federal judges, will be left to debate how to conduct a “practical” inquiry into determining the job duties of Section 1983 plaintiffs suing as public employees under the First Amendment.