"I may be wrong and you may be right, and by an effort, we may get nearer to the truth." (Karl Popper)

Tuesday, June 06, 2006

Garcetti v Ceballos

Richard Ceballos was a deputy district attorney in Los Angeles. Ceballos believed that a police affidavit had made "serious misrepresentations" in order to obtain a critically important search warrant. He wrote an angry memo to his supervisors; he believed the prosecution should be dropped because (he said) the warrant was faulty. The criminal case to which the warrant related went ahead. Ceballos was subpoenaed by the defence, which benefited from his testimony. As a result, Ceballos says, he was punished by various retaliations, including "reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion." He took a legal action, claiming that his First Amendment (i.e. free speech) rights had thus been breached. His supervisors deny that decisions taken about Ceballos were retaliatory. They argued that several U.S. Supreme Court precedents were designed to prevent employer-employee relationships from becoming constitutional disputes. That Court handed down its decision last week.

To quote George Will:
The [U.S. Supreme Court] has [previously] held that the threshold question in such cases is whether the employee spoke as a private citizen and on a matter of public concern. If so, First Amendment protection is possible. But not mandatory, because the second question is whether restrictions on employees' speech are justified by the government's need, which any employer has, for substantial control over employees' words and actions.
In Ceballos' case, the Court reversed the Ninth Circuit Court of Appeals. The Ninth Circuit had sided with Ceballos, because the matter was one of public concern. Giving the judgment of the Supreme Court, Justice Kennedy (with whom Roberts CJ, Scalia, Thomas and Alito JJ. agreed) pointed out that, as Will notes:
the 9th Circuit did not consider whether Ceballos' speech was made in his "capacity as a citizen." And: "We hold 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."
Justice Kennedy wrote that by ignoring the question of whether the statements were made in the empoyee's category as a private citizen, the approach favoured by the Ninth Circuit would produce a huge "displacement of managerial discretion by judicial supervision." It would "commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business," a flood of "judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers."

This is an interesting question. Employers (including the government) need to control what employees do and say in order to run their operations effectively. As Justice Breyer (dissenting) put it, "the government, like any employer, must have adequate authority to direct the activities of its employees. That is also because efficient administration of legislatively authorized programs reflects the constitutional need effectively to implement the public's democratically determined will." On the other hand, free speech is fundamental in a liberal democracy; a citizen employed by the government shouldn't have this freedom curtailed unless necessary. The relevant test is the Pickering balancing test, named after Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968).

Justice Kennedy set out the balancing act necessary as follows:
When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g., Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion) ("[T]he government as employer indeed has far broader powers than does the government as sovereign"). Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services. Cf. Connick, supra, at 143 ("[G]overnment offices could not function if every employment decision became a constitutional matter"). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972). So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.
The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. See, e.g., Rankin, 483 U. S., at 384 (recognizing "the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment"). Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance." Connick, 461 U. S., at 154
The first emphasised phrase is the part of the analysis the Ninth Circuit had elided, the second concern is clearly a motivating concern for the Supreme Court majority.

For anyone interested in this sort of thing, the case is worth reading. Justice Breyer's dissent in particular is worth reading too; his approach is interesting and persuasive. But the majority's reasoning is also attractive. Anyone who believes in limited government should hesitate to see the courts insert themselves unnecessarily in employer-employee disputes. Whatever about the facts of Ceballos' case, Justice Breyer might be correct in saying that their doctrinal analysis is potentially too sweeping. Ideally, of course, the matter of whislte-blowing would be dealt with by legislatures as they see fit. In that regard, I would share the majority's hesitance to intervene and set constitutional requirements for all 50 states i.e. the federalist and separation of powers arguments.


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