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U.S. Supreme Court Limits Public Employees' Speech Rights


06/02/06

In a five to four decision issued on Tuesday, May 30, the United States Supreme Court held that the First Amendment’s free speech clause does not protect public employees who "make statements pursuant to their official duties."  (Garcetti v. Ceballos, No. 04-473.)

Richard Ceballos is a deputy district attorney in Los Angeles County, California.  In 2000, while acting in his capacity as a calendar deputy, he received a complaint about the accuracy of a sheriff officer’s affidavit in support of a search warrant.  He investigated the complaint and concluded that there were serious discrepancies in the affidavit.  He reported his conclusions in two memoranda to his superiors, in which he also recommended that the prosecution on which the search was based be dismissed.  He also argued his position in a heated meeting between members of the district attorney’s office and representatives of the sheriff’s department.  Ceballos’s superiors rejected his recommendation and went ahead with the prosecution.  At a hearing to suppress the results of the search subject to the warrant, Ceballos was called as a witness to describe his investigation of the affidavit.  The court upheld the warrant and denied the motion to suppress the evidence.

Thereafter Ceballos was transferred to a less desirable office farther from his home, assigned to different and less desirable duties and denied a promotion.  After exhausting internal remedies unsuccessfully, he sued the district attorney in federal court, claiming that the actions taken against him were in retaliation for his speaking out within the office about the discrepancies in the search warrant affidavit.  He argued that, because there was a public interest in assuring that affidavits by law enforcement officials are truthful, his communications within the district attorney’s office about the questionable affidavit were protected as free speech under the First Amendment.

The Supreme Court rebuffed his contention.  The Court recognized that public employees do not give up their right to free speech when they become public employees, and they may not be disciplined for speaking out about matters of public interest, provided they do not interfere with the operations of their employer.  The Court agreed here that the truthfulness of search warrant affidavits is a matter of public interest and that Ceballos’s communications about the subject did not disrupt or interfere with the operations of the district attorney’s office.  Nevertheless, the Court adopted a per se rule 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."  In another way of stating its holding, the Court said that public employees only enjoy First Amendment protection when they are doing something that any other non-employee citizen could do, such as writing a letter to the editor.  Writing a memo to one’s boss on a subject within one’s job duties, however, is not something any other citizen could do, and therefore it was outside the zone of First Amendment protection.

Four observations about the case are worth noting:

  1. This decision applies only to public employees, because the First Amendment’s protection applies only to limit the way the government may restrict speech.  Nonetheless, there are, of course, millions of public employees and employers affected by the decision.
  2. There were four very vigorous dissents, which means the case may be somewhat limited by its facts, and the Court’s alignment on the issue could change under a different set of facts.
  3. The dissenters argued that the decision will discourage appropriate internal "whistleblower" communications, and instead encourage employees to "go public" with complaints about misconduct, etc.
  4. Both of President George W. Bush’s appointees to the Court sided with the position favorable to public employers.  This is one of the first cases since Justice Alito took the bench, that the Court has divided along the traditional "conservative"/"liberal" lines that were common during the recent years of the Rehnquist Court era, and may indicate that alignment will continue.

John T. Hansen, partner at Nossaman, specializes in employment law, bankruptcy, corporate reorganization and complex business litigation.  He can be reached at (415) 438-7245 or jhansen@nossaman.com.

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