May 31, 2006
A Supreme Court Setback for Whistle-Blowers
By LINDA GREENHOUSE, NY TIMES

LINK

WASHINGTON, May 30 - The Supreme Court ruled on Tuesday that the Constitution does not protect public employees against retaliation by their supervisors for anything they say in the course of performing their assigned duties.
While the court's focus in the 5-to-4 decision was on disputes that remain within the workplace, the decision raised questions about the extent to which whistle-blowers who make their complaints public might now face a greater danger of retaliation.
Although several employee groups raised immediate alarms, Justice Anthony M. Kennedy's majority opinion in fact contained the counterintuitive implication that employees might fare better by speaking out as "citizens" and taking their complaints to the public rather than keeping them within the official chain of command.
The likely impact of the ruling was therefore far from clear. The court raised several questions that it did not answer, instead sending the case back to the lower federal courts in California, where it began as a suit by an assistant prosecutor in Los Angeles who claimed he was the victim of unconstitutional retaliation for complaints about a search warrant.
The National Whistleblower Center and other groups representing public employees issued statements deploring the decision and warning that it would deter employees from taking risks to expose waste and fraud.
But Daniel P. Westman, a lawyer with the firm of Morrison & Foerster who advises employers on whistle-blower issues, said in an interview that the decision did little more than affirm the status quo by "rejecting a very overreaching opinion" by a federal appeals court. He said "smart employers" would now be sure to encourage the use of internal complaint mechanisms to deter employees from taking their complaints public and thus enjoying the prospect of greater constitutional protection.
Justice Kennedy's opinion drew a formal distinction between two kinds of speech by public employees: statements they make "pursuant to their official duties" and those made as citizens contributing to "the civic discourse." The first category was not protected by the First Amendment's guarantee of free speech, Justice Kennedy said, while the second retained "the prospect of constitutional protection."
The dissenting justices warned that this distinction would often be unclear in practice and difficult for lower courts to apply.
"The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong," Justice John Paul Stevens said in a dissenting opinion.
The other dissenters were Justices David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg.
Chief Justice John G. Roberts Jr. joined the majority opinion, as did Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Justice Alito was not on the court when the case, Garcetti v. Ceballos, No. 04-473, was argued last October. The case had not been decided by the time Justice Sandra Day O'Connor retired and Justice Alito took his seat in January.
When the court ordered a second argument, held on March 21, the implication was that the eight remaining justices who had heard the case the first time were deadlocked and that Justice Alito would break the tie. The reality may have been more complex.
Justice Breyer made it clear in his separate dissenting opinion that he was satisfied with neither Justice Kennedy's majority opinion nor Justice Souter's principal opinion for the other three dissenters, and his vote may have been uncertain until late in the process. Justice Breyer would have emphasized the fact that as a lawyer, the plaintiff, Richard Ceballos, had special ethical obligations to speak up if he found problems with a pending prosecution and so deserved special constitutional protections.
In his lawsuit, Mr. Ceballos claimed that he was given an unwelcome transfer and was denied a promotion after taking several steps to complain about the apparent unreliability of an affidavit that had provided the basis for a search warrant in a case the office was prosecuting. He told his supervisors of his concerns, and wrote a memorandum recommending dismissal of the case. There was a heated meeting, after which his concerns were rejected.
Mr. Ceballos later testified for the defense at a court hearing, and spoke about the issue at a meeting of the Mexican American Bar Association.
The Supreme Court's focus, however, was entirely on the initial internal memorandum because the United States Court of Appeals for the Ninth Circuit, in ruling for Mr. Ceballos, found that the document was constitutionally protected speech and did not then go on to consider the constitutional status of his other actions.
In overturning the Ninth Circuit's judgment, Justice Kennedy's opinion said that in writing the memorandum, Mr. Ceballos was simply carrying out the normal duties of his job, which included advising his supervisors on how to proceed with pending cases.
"We hold that when public employees make statements pursuant to their official duties," Justice Kennedy said, "the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
To hold otherwise, he continued, would be to give employees "a right to perform their jobs however they see fit," as a matter of constitutional law. It would "commit state and federal courts to a new, permanent and intrusive role" of overseeing internal communications in government workplaces, the justice concluded.
The lower courts will now consider whether Mr. Ceballos was performing his normal duties when he testified at the hearing and spoke to the bar association. Justice Souter, in his dissenting opinion, said that these were not obviously part of the prosecutor's normal duties and that they needed to be analyzed independently.
If they are found to be "citizen" speech, under the dichotomy the court established, these comments will be analyzed under a 1968 Supreme Court precedent that set up a balancing test for whether a public employee's speech is constitutionally protected. Courts weigh the employee's interest in commenting on matters of public concern against the employer's interests as a manager.

ACLU Amicus Brief
ACLU Denounces Supreme Court Ruling in Whistleblower Case
ACLU Urges Supreme Court to Support Public Employees' Right to Expose Police Misconduct

liibulletin: Supreme Court Oral Argument Previews
Garcetti v. Ceballos (04-473)
and Supreme Court
http://www.fac.org/faclibrary/casesummary.aspx?case=Garcetti_v_Ceballos

Court appealed From: United States Court of Appeals, Ninth Circuit (Mar. 22, 2004)

Oral argument date: October 12, 2005
FIRST AMENDMENT, FREEDOM OF SPEECH, QUALIFIED IMMUNITY, PUBLIC CONCERN, GOVERNMENT EMPLOYEE, EMPLOYEE RETALIATION, WHISTLEBLOWER

Richard Ceballos, an employee at the Los Angeles County District Attorney's Office, sued his supervisors under 42 U.S.C. § 1983, alleging that they retaliated against him for exercising his First Amendment rights. Ceballos specifically alleged that he was shunned, demoted, and reassigned to a remote office for reporting purported misconduct by the sheriff's office. The defendants claimed that they are immune from liability under the Eleventh Amendment, which provides that state officials cannot be sued if they were acting on behalf of the state when engaged in the alleged acts. The circuit court held that the defendants were not immune from liability, and that Ceballos had a First Amendment protection claim even though his speech was made in fulfillment of regular employment responsibilities. How the Supreme Court decides the case will reflect its view on the correct balance between the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees, and the interest of employees in exercising their First Amendment right to comment upon matters of public concern. This decision will affect the way government employers and employees communicate in the workplace, which will, in turn, influence the degree to which the public can hold public officials accountable.

Questions Presented
(1) Should a public employee's purely job-related speech, expressed strictly pursuant to the duties of employment, be cloaked with First Amendment protection simply because it touches on a matter of public concern, or should First Amendment protection also require the speech to be engaged in
'as a citizen," in accordance with this Court's holdings in Pickering v. Board of Education , 391 U.S. 563 (1968) and Connick v. Myers , 461 U.S. 138 (1983)?

(2) Is immediate review by this Court necessary to address the growing inter-circuit conflict on the question of whether a public employee's purely job-related speech is constitutionally protected, especially where the lack of uniformity dramatically impacts the ability of all public employers to effectively manage their respective agencies?

Issues
Whether a government employee who speaks on a matter of public concern loses his First Amendment protection solely because he communicated the message as an employee rather than as a citizen.

Factual Narrative
Plaintiff Richard Ceballos began working for Los Angeles County as a deputy district attorney in 1989. See Ceballos v. Garcetti, 361 F.3d 1168, 1171 (9th Cir. Cal., 2004), cert. granted, 125 S. Ct. 1395 (2005). In February of 2000, while working as a calendar deputy in the Pomona Branch of the District Attorney's Office, Ceballos learned from a defense attorney that a sheriff may have lied to obtain a search warrant in a case then being prosecuted by Gil Garcetti, County District Attorney and Ceballos's supervisor. Ceballos investigated the matter and concluded that the sheriff had misrepresented the facts to obtain the search warrant.
Ceballos prepared an office memorandum reporting this discrepancy and gave it to Deputy District Attorneys Carol Najera and Frank Sundstedt. Despite Ceballos's recommendation that the case be dismissed, the prosecution went forward. Ceballos informed the defense about his findings and went on to testify on its behalf at a hearing on a motion to dismiss the case. The judge denied the motion and Ceballos was removed from the prosecution's team.
Ceballos filed a lawsuit in the United States District Court of the Central District of California, Ceballos contended that he was subjected to adverse employment actions by Najera, Sundstedt, Garcetti in retaliation for engaging in speech protected by the First Amendment. In particular, Ceballos alleged that he was shunned, demoted, and reassigned to a remote office for reporting the purported misconduct by the deputy sheriff and for testifying truthfully at the court hearing. See id.
Ceballos argued that his testimony and submission of the memorandum should be considered free speech protected under the First Amendment, and that the defendants had therefore violated his constitutional rights. The defendants claimed that they were immune from liability under the Eleventh Amendment, which provides that state officials cannot be sued if they were acting on behalf of the state when engaged in the alleged acts.
The district court granted a motion for summary judgment on behalf of the defendants, finding no protected First Amendment interest because Ceballos had acted in a purely "job-related capacity" and not in his capacity as a citizen.
The Ninth Circuit of the United States' Court of Appeals reversed, holding that Ceballos's speech was protected under the First Amendment and that the district court erred by granting immunity to the defendants.
Writing for the majority, Judge Stephen Reinhardt explained that Ceballos's speech warranted constitutional protection because it 'addressed a matter of public concern' (Connick v. Myers, 461 U.S. 138 (1983)) since it was "relevant to the public's evaluation of the performance of governmental agencies," and because (Ceballos's) interest in the speech outweighed the public employer's interest in avoiding efficiency and disruption (Pickering v. Board of Education, 391 U.S. 563 (1968)). Reinhardt emphasized that "the right of public employees to speak freely on matters of public concern is important to the orderly functioning of the democratic process." See id. at 1175. The fact that Ceballos acted "in fulfillment of a regular employment responsibility does not serve to deprive him of the First Amendment protection afforded to public employees." See id. at 1178.
Reinhardt also pointed out that a prosecutor can only have immunity under the Eleventh Amendment if he violates a person's constitutional rights while acting in a judicial proceeding. See id. at 1184. Since the defendants violated Ceballos's First Amendment rights while performing administrative and other non-prosecutorial duties, they were not entitled to immunity. See id.
In a concurring opinion, Judge Diarmuid O'Scannlain advocated a "per se rule," where public officials would automatically lose their First Amendment protection if their speech took place in the course of carrying out employment obligations. See id. at 1187. O'Scannlain pointed out that "the Government has no First Amendment rights. Only individuals do." See id. at 1190. He also noted that the majority's decision has "planted the seed of a constitutional case in every task that every public employee ever performs, every time that any public employee merely does what he is supposed to do." See id. at 1190.
The Supreme Court granted certiorari in response to the growing inter-circuit conflict on the question of whether a public employee's purely job-related speech is constitutionally protected, where the lack of uniformity will impact the ability of public employers to effectively manage their respective agencies.

Discussion
"From establishing the power and freedom of the press to safeguarding the Internet from content-based regulations, the First Amendment's impact can neither be quantified nor undervalued." Petitioner's Brief on the Merits at 9, Garcetti v. Ceballos, No. 04-473 (9th Cir. May 27, 2005). Garcetti v. Ceballos will not only have a broad impact on all U.S. residents but also will particularly affect government employers and employees.
The Ninth Circuit decided that expression by public employees is constitutionally protected when they speak as employees - so as long as the employee is speaking on a matter of public concern and her interest outweighs her employer's interest in an efficient workplace. See Petitioner's Brief on the Merits at 12, Garcetti v. Ceballos, No. 04-473 (9th Cir. May 27, 2005).
If the Court affirms this decision, government and schools may suffer. First, because government employees will have broader First Amendment protection, employees may sue the government more readily, exposing local governments to the expense, inconvenience and workplace disruptions of frequent litigation. See Brief of International Municipal Lawyers Association as Amicus Curiae in Support of Petitioner at 1, Garcetti v. Ceballos, No. 04-473 (9th Cir. May 27, 2005). Predicting the outcome of such litigation will prove difficult, as the balancing of interests involves considering the employee's motives and the societal significance of the employee's speech. Because both issues are subjective, government employers will be hard-pressed to formulate dependable management guidelines. See id.
Second, schools may have difficulty implementing their curriculum. Under the Ninth Circuit's decision, schools may not be able to discipline or terminate employees who refuse to execute their responsibilities without worrying about infringing on First Amendment rights. See Brief of Amicus Curiae National School Boards Association in Support of Petitioners at 3, Garcetti v. Ceballos, No. 04-473 (9th Cir. May 26, 2005). Indeed, allowing teachers to "don the mantle of First Amendment protection" and espouse their own views in class related to a public concern could hamper a school's ability to teach students the school's selected curriculum. See id. at 19. For example, a sex education teacher may refuse to comply with the curriculum -undoubtedly a subject of public concern -because she disagrees with the district's abstinence-only approach. See id.
On the other hand, the Court may reverse the Ninth Circuit, narrowing public employees' First Amendment protection to only speech they engage in "as citizens," not all speech that relates to matters of public concern. See Petitioner's Brief on the Merits at 12, Garcetti v. Ceballos, No. 04-473 (9th Cir. May 27, 2005). A reversal may chill the speech of public employees, prosecutors, and teachers' speech that would further the interests of the public and the government itself. See Brief for the National Treasury Employees Union as Amicus Curiae Supporting Respondent at 3, Garcetti v. Ceballos, No. 04-473 (9th Cir. July 22, 2005). Without First Amendment protection, public employees "with their specialized expertise and insights resulting from their work" may hesitate to expose wrongdoing or waste of government funds by presenting their opinions in an employee context. See id. Furthermore, chilling communication by public employees would deprive policymakers of informed views on which to base their policy determinations. Thus, governmental decision-makers will suffer, as will the public in whose name the government acts. See Brief of National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the American Civil Liberties Union of Southern California as Amici Curiae Supporting Respondent at 3, Garcetti v. Ceballos, No. 04-473 (9th Cir. July 22, 2005).
In addition, a reversal may mean prosecutors will be less likely to discuss wrongdoing by colleagues or bring similar issues of public concern to the surface for fear of retaliation or loss of employment. See Brief of Association of Deputy District Attorneys and California Prosecutors Association As Amici Curiae in Support of Respondent at 2, Garcetti v. Ceballos, No. 04-473 (9th Cir. July 22, 2005). Similarly, teachers may be less willing to discuss current events or controversial issues in the classroom. See Brief of the National Education Association as Amicus Curiae in Support of Respondent, Garcetti v. Ceballos at 16, No. 04-473 (9th Cir. July 22, 2005). It is difficult to conceive of a classroom discussion of abortion rights, for example, that would not offend the sensibilities of at least one parent or community member. See id. Therefore, a teacher concerned with her long-term employment prospects would avoid the topic altogether, despite its significant educational value. See id.

Analysis
Ceballos, a public employee, who said he was demoted and denied promotion after reporting purported wrongdoing by the sheriff's office, argues that his speech is protected by the First Amendment. See Brief for Respondent at 8, 13-14, Garcetti v. Ceballos, No. 04-473 (9th Cir. Jul. 22, 2005). Los Angeles officials, on the other hand, argue that if this kind of speech is protected, all routine, job-required speech could act as the basis for actionable First Amendment claims, thereby exposing local governments to the expense, inconvenience and workplace disruptions of frequent litigation. See Petitioner's Brief on the Merits at 36 Garcetti v. Ceballos, No. 04-473 (9th Cir. May 27, 2005). To resolve this dispute, the Court will apply the Pickering balancing test. See 391 U.S. 563, 568 (1968).

The Pickering Balancing Test
In Pickering v. Board of Education , 391 U.S. 563 (1968), the Court held that, in deciding whether an employer's action in response to a public employee's speech violates the First Amendment, courts must consider at least two factors: (1) the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees; and (2) the interest of the employee in commenting upon matters of public concern. See id. at 568. The Los Angeles officials argue that the Pickering test also includes a third factor: the interest of the employee, " as a citizen, in commenting upon matters of public concern." Pickering , 391 U.S. at 568 (emphasis added).

Factor One: Interest of the State Employer
Ceballos points out that two decades of actual experience by the lower courts have shown that protecting government employees' speech does not prevent public agencies from fulfilling their public missions. See Brief for Respondent at 41, Garcetti v. Ceballos, No. 04-473 (9th Cir. Jul. 22, 2005). this is because both the Pickering balance and the requirement that the speech addresses a matter of public concern work together to ensure that not every task can lead to a First Amendment claim. See id. On the other hand, the Los Angeles officials argue that the Ninth Circuit's overly simplified approach will severely disrupt governmental operations by creating undue confusion and unpredictability, while also dramatically increasing the volume of First Amendment litigation. See Petitioner's Brief on the Merits at 35, Garcetti v. Ceballos, No. 04-473 (9th Cir. May 27, 2005). They also argue that since virtually everything a public employee does in carrying out his job duties is ultimately connected to the public interest, and much of that activity involves speaking or writing, the decision below plants "the seed of a constitutional case," in a large proportion of the tasks that a public employee performs. See Brief For The United States As Amicus Curiae Supporting Petitioners at 6, No. 04-473 (9th Cir. May 2005) (quoting Connick, 461 U.S. at 149).

Factor Two: Interest of the Employee in Commenting Upon Matters of Public Concern
Ceballos maintains that government employees have a significant interest in commenting upon matters of public concern without having to worry about losing their jobs. He argues that one important purpose of First Amendment protection is to "protect the free discussion of public affairs" so that a well-informed citizenry can hold public officials accountable and compel government to correct its abuses. See Brief for Respondent at 15. The circuit court agreed, writing that "public employees, by virtue of their access to information and experience regarding the operations, conduct, and policies of government agencies and officials, are positioned uniquely to contribute to the debate on matters of public concern." See Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir. Cal., 2004), granted, 125 S. Ct. 1395 (2005). Furthermore, it does not matter that Ceballos's allegations had turned out to be false. See Brief for Respondent at 15, Garcetti v. Ceballos, No. 04-473 (9th Cir. Jul. 22, 2005). As long as the employee makes the statement in good faith, an employee's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. See Pickering http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=391&invol=563391 U.S. at 574.

Factor Three: Whether the Statement was made "as a Citizen"
The threshold factor is perhaps whether a public employee must speak "as a citizen" to enjoy First Amendment Protection. Ceballos argues that employees speak as a "citizen" when they express views on a matter of public concern, whether or not as part of their job. See, e.g. , Robinson v. Balog, 160 F.3d 183, 188-89 (4th Cir. 1998) (emphasis added). Ceballos therefore argues that his speech did not contain "ammunition in a battle between employee and employer over some personal grievance." See Brief for Respondent , Garcetti v. Ceballos, No. 04-473 (9th Cir. Jul. 22, 2005). Rather, he contends his "reports of suspected policy perjury lie at the core of First Amendment protection." See id. Ceballos also points out that Connick v. Myers makes the distinction that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision. See id. at 147.
Conversely, the Los Angeles officials argue that the circuit court erroneously interpreted court precedents; they maintain that the Court has never held that purely job-required speech is constitutionally protected. See Petitioner's Brief on the Merits at 25, Garcetti v. Ceballos, No. 04-473 (9th Cir. May 27, 2005). Moreover, they argue that routine, job-required speech should not give rise to a First Amendment claim because it would "severely disrupt governmental operations by creating undue confusion and unpredictability, while also dramatically increasing the volume of First Amendment litigation." See id. at 35.

Conclusion
The Supreme Court's decision will reflect its view on the correct balance between the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees, and the interest of employees in exercising their First Amendment right to comment upon matters of public concern. If the Court affirms the lower court's decision and holds that all employment-related speech is protected by the First Amendment, the decision may increase the flow of First Amendment litigation and hinder the ability of public agencies to efficiently execute their public services. Alternatively, a reversal may chill the speech of prosecutors, teachers, and other government employees' speech that may further the interests of the public and the government itself.

Authors
Prepared by: Thomas F. Lavery IV, and Vi T. Vu

Additional Sources
"General Information:
Public Citizen Press Room
oFirst Amendment Center
"Amicus Briefs:
National School Boards Association in Support of Petitioners
The United States in Support of Petitioners
The Thomas Jefferson Center in Support of Respondent
Government Accountability Project et al. in Support of Respondent

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