Garcetti v. Ceballos
The case of Garcetti v. Ceballos involves the question of whether or not the First Amendment protects a government employee from disciplinary measures based on speech made by the said employee pursuant to his official duties.
Richard Ceballos was a deputy district attorney for the Los Angeles County District Attorney’s Office since 1989. At the time of the occurrence of the events relevant to this case, he was a calendar deputy in the Pomona branch. Sometime in 2000, Ceballos was contacted by a defense attorney concerning a pending criminal case, which attorney stated that there were inaccuracies in the affidavit instrumental in the obtention of a crucial search warrant, and informed the former that he had filed a motion to challenge he issuance of the said warrant.
Ceballos conducted an investigation and made an ocular inspection of the premises in question. When he compared his findings with what was stated in the affidavit, he determined that the said affidavit was inaccurate and contained substantial misrepresentations. Based on his findings, he made a memo with a recommendation for the dismissal of the case. A meeting with the affiant, a Deputy Sheriff from the Los Angeles County Sheriff’s Department, was thereafter held, with Ceballos being criticized for his performance.
Despite his recommendations, Ceballos’ supervisors decided to proceed with the case. During the hearing on the motion challenging the search warrant, Ceballos testified for the defense as to his findings. Notwithstanding is testimony, the trial court upheld the validity of he issuance of the warrant.
Ceballos thereafter brought a complaint under the employment grievance machinery for what he claimed to be retaliatory acts against him by his supervisors, i.e., reassignment to a trial deputy position, transfer to another courthouse, and denial of promotion. His grievance being dismissed, he brought an action in the US District Court for the Central District of California under Rev. Stat. § 1979, 42 USC § 1983, alleging that his supervisors violated the First and Fourteenth Amendments by retaliating against him because of the memo he made.
Ceballos’ supervisors moved for summary judgment, which was granted by the District Court in their favor, stating that the contents of the memo were written pursuant to his duties as an employee, and were thus not covered by the First Amendment. On appeal, the Court of Appeals for the Ninth Circuit reversed and held that the content of Ceballos’ memorandum were protected speech under the First Amendment. Relying on Connick v. Myers (461 US 138, 1983), the court determined that Ceballos had made his statements on a matter of public concern, without expressly stating if he made such statement as a citizen. Following the balancing test provided in Pickering v. Board of Educaton (391 US 563, 1968), the court then weighed Ceballos’ interests against those of his supervisors in responding to it, and found in his favor. When the case was originally elevated to the Supreme Court, it granted certiorari (543 US 1186, 2005) and reversed the Court of Appeals.
Providing a fuller discussion of the doctrines laid down in Pickering, the court held that when a public employee makes statements pursuant to their official duties, the employee is no speaking as a citizen for First Amendment purposes, and is thus subject to employer discipline which does not constitute a violation of the Constitution. The court held that the turning point was not the fact that Ceballos did not state his opinion publicly but merely inside his office, nor the fact that the subject matter of the memo was something that pertained to his employment, but that he made such an opinion was made pursuant to his duties as a calendar deputy. The court stated that “restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Further justifying its reversal of the decision of the Court of Appeals, the court stated that to sanction such a holding would lead to a more intrusive role of the courts tantamount to displacing the managerial prerogative of employers which would go against the doctrine of separation of powers and the concept of federalism. The Court accordingly reversed the appellate court and remanded the case for further proceedings.
There were three dissents to the majority opinion by Justices Stevens, Souter, and Breyer. In Justice Stevens’ opinion, the majority opinion is “misguided”, and the correct answer to the question of whether or not the First Amendment protects a government employee from disciplinary measures based on speech made by the said employee pursuant to his official duties is sometimes, and not never as implied by the majority decision.
Justice Souter gave a more thorough dissent, stating that he agrees with the majority insofar as it held that a government employer has a substantial interest in “effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work”, but would like to qualify the statement in holding that “private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to First Amendment protection.”
While Justice Souter adheres to the use of the balancing test in Pickering by the majority, he disagrees as to the manner by which it was used. For him, “the need for a balance hardly disappears when an employee speaks on matters his job requires him to address; rather, it seems obvious that the individual and public value of such speech is no less, and may well be greater, when the employee speaks pursuant to his duties in addressing a subject he knows intimately for the very reason that it falls within his duties.” In speaking on such matters, it cannot be gainsaid that the public employee is not also speaking as a citizen, where, as in this case, Ceballos expressed his opinion about another public officer was not performing the duties expected of him as a holder of a public office which is a public trust. Justice Souter states that “only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in the employee’s favor.”
Justice Breyer dissents not only with the majority, but with opinion of Justice Souter as well. Justice Breyer points out the fact that the speech in question is professional speech, i.e., that made by a lawyer, which is governed by the canons of the legal profession, providing for a duty to speak in certain instances, and as such, “the government’s interest in forbidding that speech is diminished.” Next, he states that the Constitution itself imposes to the obligation for the government employee to speak, because of the duties of prosecutors. With these two present, he argues that there is a greater need to protect the speech of the government employee. With respect to Justice Souter’s dissent, Justice Breyer disagrees with the former’s statement that “only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in the employee’s favor”, because such a statement does not really provide a standard different than that which the majority used in deciding in the manner it did. In sum, Justice Breyer’s arguments are to the effect that sometimes, the First Amendment allows judicial action based on a government employee’s speech that involves a matter of public concern despite the fact that it takes place in the ordinary course of duties related to his employment, but only in the presence of an “augmented need for constitutional protection and diminished risk of undue judicial interference with government management of the public’s affairs.” He opined that these conditions were present in the case of Ceballos.
The dissenting opinions, particularly that of Justice Breyer, seem more convincing than the majority. The reasoning given by the majority is somewhat flawed, for it seems to contradict itself in certain points, as when it determined that the case hinges on the fact that Ceballos made his speech as a consequence or a function of his office by stating that “restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created”, when it itself stated that it was not the subject matter that was important. The subject matter of the disposition memorandum created by Ceballos is inseparable from and intimately connected to the functions of his office, and segregating them and treating them as independent factors only serves to confuse, not clarify, the issue. Also, it was surprising that the Supreme Court made a categorical denial of First Amendment protection vis-à-vis speech made by a government employee in the exercise of his functions, considering the valued position the freedom of speech has in the hierarchy of rights protected by the Constitution. It was almost as if the court was judicially legislating, because there is no law which explicitly prohibits or denies First Amendment protection to government employee speech. The rigidity by which the court treated the issue belies the paramount importance granted to free speech by the Constitution as protected by many previous decisions. It is as if the court did not really make use of the balancing of interests test that it cited. In fact, the court touched on the matter of managerial prerogative but there was no corresponding discussion on the rights of employees vis-à-vis the exercise of sound managerial discretion or business judgment.
On the other hand, the dissents were more painstaking in their application of the balancing test, and seemed to be written in such a manner as to take into account the fact that issues such as these often do not afford a categorical yes or no answer, but should be determined on a case to case basis in light of the factual milieu and the circumstances surrounding the issue. This is precisely what Justice Breyer did in his dissent. He took into consideration the prevailing general rule and examined the given exceptions, and in applying them to the present case, he pointed out certain factual peculiarities which would call for a modified application of the exceptions to the general rule. His discussion leaves the issue open for advocacy, unlike the majority decision which precludes any argument respecting any instance in which the First Amendment may be considered to protect government employee speech. While Justice Souter points out that the answer to the issue of whether or not the First Amendment protects a government employee from disciplinary measures based on speech made by the said employee pursuant to his official duties should be “sometimes” instead of the majority’s implied categorical “never”, Justice Breyer is more expressive of why this should be so.
As a justice, I would have voted in the same manner as Justice Breyer and joined him in his well-worded dissent, with the addition that I would take into account managerial prerogative vis-à-vis employee rights in the context of public employment, as this was brought up in the majority opinion but was not fully threshed out.
In my opinion, the decision makes for bad precedent; a categorical denial of the protection to speech granted by the First Amendment should not be countenanced, especially if it comes from the body that is supposed to aid the individual in the redress of violations of his rights. Freedom of speech cases should be decided carefully, because they involve issues concerning one of the most fundamental freedoms of every citizen.