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Published in Print: October 19, 2005, as Court Mulls Protection for Public-Employee Speech

Court Mulls Protection for Public-Employee Speech

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A case testing the limits of the First Amendment’s protections for speech by government employees came before the U.S. Supreme Court last week, as the justices considered whether extending constitutional protection to job-related speech would interfere with the operations of public agencies, including school districts.

The Oct. 12 arguments in Garcetti v. Ceballos (Case No. 04-473) concerned an assistant prosecutor in Los Angeles County, Richard Ceballos, who claimed that his superiors retaliated against him in 2000 after he alleged in a memorandum that a county sheriff’s deputy had significantly misrepresented the facts on an affidavit to obtain a search warrant. Mr. Ceballos later provided the memorandum to a defense attorney in the case, and testified at the hearing on a motion to challenge the search warrant.

After being allegedly demoted and ill-treated by his supervisors afterward, Mr. Ceballos sued, arguing that he was entitled to First Amendment protection for his speech. The case follows a line of Supreme Court cases on government employees’ speech that started with a landmark 1968 ruling in Pickering v. Board of Education of Township High School District 205. In that case, the court held that a teacher who was speaking as a citizen on an issue of public concern was protected by the First Amendment from retaliation.

But another major decision, in the 1983 case of Connick v. Myers, held that government employees’ speech on matters of personal concern, such as typical workplace gripes, would not subject an employer to First Amendment scrutiny.

The question in the new case is whether speech that is part of the employee’s job is subject to First Amendment protection. That category can cover such speech as whistleblowing on alleged wrongdoing by employees, such as in Mr. Ceballos’ case, as well as potentially other areas of job-related speech.

A Professor’s Lectures

The National Education Association filed a friend-of-the-court brief in the case on the employee’s side, saying that “to teach is to communicate—often on matters of the greatest public importance and controversy.” Barring a public employee’s on-the-job speech from ever having First Amendment protection, the 2.7 million-member teachers’ union said, “would have a devastating impact on teachers.”

But the National School Boards Association, in a brief filed on the side of Los Angeles County, said it was important for schools to be able to control their employees’ speech, especially regarding the curriculum.

“Schools should be able to discipline or terminate employees who refuse to execute their responsibilities in the manner prescribed by the school board without undue fear of First Amendment claims based on speech made in fulfilling the employees’ job duties, that happens to implicate a matter of public concern,” the NSBA’s brief says.

In the Los Angeles County case, a federal district court held in favor of the district attorney’s office, but the U.S. Court of Appeals for the 9th Circuit, in San Francisco, reversed that decision. The appeals court held that Mr. Ceballos’ speech in his memo was protected because it “addressed a matter of public concern and that his interest in the speech outweighed the public employer’s interest in avoiding inefficiency and disruption.”

The county argues that an employee is acting as the state when he speaks during the performance of his duties, in contrast to speech outside of those duties, as a citizen. The Bush administration also argued on the county’s side last week, arguing that a public employee has no First Amendment interest in speech expressed as part of his job duties.

Those arguments appeared to resonate with several Supreme Court justices last week.

Cindy S. Lee, the lawyer for Los Angeles County, argued that Mr. Ceballos’ case did not fall under Pickering because “job-required speech is not protected by the First Amendment, so there’s no need to go into the balancing.”

Chief Justice John G. Roberts Jr. asked Ms. Lee whether a “public-university professor who is fired for the content of his lectures” would have a First Amendment case.

“Certainly that is part of his job, right?” the chief justice said.

Ms. Lee said such an employee would not be entitled “presumptively” to constitutional protection. Chief Justice Roberts suggested that such on-the-job speech by an individual could be viewed as speech by the government itself.

“If you pay the piper, you get to call the tune. In this case, it was just in-sourced [to its own employee],” he said in an exchange with Bonnie I. Robin-Vergeer, Mr. Ceballos’ lawyer.

Ms. Robin-Vergeer replied, of her client: “He spoke to the government, not as the government.”

Justice Anthony M. Kennedy seemed especially concerned about the effect that a ruling in favor of Mr. Ceballos would have on government workplaces. He said to Ms. Robin-Vergeer: “What you’re saying is that the First Amendment has an official function inside the office. … The First Amendment isn’t about policing the workplace.”

Ms. Robin-Vergeer replied that it is important for employees to be able to speak about government agencies because they, more than others, have critical knowledge about their operations. She mentioned the Federal Emergency Management Agency as an example of an agency that would benefit in its operations from the speech of whistleblowers.

Internal Channels

But Chief Justice Roberts said that submitting every case to First Amendment scrutiny in court would be expensive and interfere with employment-related responsibilities of the government.

Some justices appeared concerned, however, about the Bush administration’s broad position that there was no First Amendment protection for on-the-job speech.

Justice John Paul Stevens suggested it was odd that an employee might have protection for raising concerns about his agency’s operations in an outside speech as a citizen, while having no protection for raising concerns within internal channels.

A decision in the case is expected by next July.

Vol. 25, Issue 08, Pages 22,24

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