WASHINGTON — A day after the Supreme Court took a new direction in its First Amendment jurisprudence concerning public-employee speech, it is almost impossible to predict where the new path will lead.
In its 5-4 ruling yesterday in Garcetti v. Ceballos, the Court seemed definitively to place an entire category of speech outside the protection of the First Amendment: statements made by government employees in the course of their official duties.
But by also stating that government employees retain free-speech rights as citizens, and by giving a favorable nod to whistleblower-protection laws, the Court seemed to raise new questions and guarantee that this nettlesome area of law is far from settled, spawning a new generation of litigation.
“Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate,” wrote Justice Anthony Kennedy for the majority.
Among the questions the ruling leaves open: Will government employees be better off taking their complaints public first, instead of voicing their concerns to superiors? Did the Court really intend to embrace the notion that government workers should be protected least when they are speaking out about what they know the most, namely their own jobs? And should First Amendment protections turn on how a government job has been defined on paper, often a long-forgotten fiction?
“The Court seems to be saying that if you don’t know anything about a subject, you can speak freely about it,” said Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression. “I don’t see this decision giving much guidance.”
And yet after yesterday's ruling, O’Neil and many other First Amendment advocates and analysts were left feeling that the high court had departed significantly from its traditional approach to government-employee speech, which included freedom of speech as one of the factors to be balanced in deciding whether an employee’s speech should be protected.
In its decision, the Court placed strong emphasis on the government interest in administrative efficiency and on “affording government employers sufficient discretion to manage their operations.” If it supported the whistleblower in the case, Kennedy wrote, the Court 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.”
Yale Law School professor Jack Balkin, writing on his Balkinization blog yesterday, said, “I am sympathetic to the Court's desire to reduce the burden of ad hoc balancing by creating a bright line rule of no protection. But in this case, the Court's decision doesn't really create a bright line rule, because the boundaries of what is within an employee's job description may turn out to be quite contestable, and will be contested in future cases.”
Balkin also said of government employees, “Whatever they do, they are pretty much screwed. So the effect of the Court's decision is to create very strong incentives against whistleblowing of any kind.”
Steve Shapiro, national legal director for the American Civil Liberties Union, also said, “In an age of excessive government secrecy, the Supreme Court has made it easier to engage in a government cover-up by discouraging internal whistleblowing.”
In the case before the Court, Los Angeles Deputy District Attorney Richard Ceballos determined that an affidavit by a deputy sheriff in a pending case contained falsehoods. He complained to superiors, but they decided to proceed with the prosecution. Ceballos continued to voice concerns, and he was eventually called as a witness by the defense.
Though he was not prevented from testifying about the improper conduct, Ceballos claimed he was demoted and punished with "freeway therapy" by being assigned to a remote office with a long commute. The 9th U.S. Circuit Court of Appeals ruled that Ceballos deserved First Amendment protection, because his speech, which amounted to whistle-blowing about government misconduct, was about a matter of public concern.
The case was argued twice before the Supreme Court, first while former Justice Sandra Day O'Connor was on the bench and again in March after Justice Samuel Alito Jr. took her place. Alito provided the fifth vote against Ceballos.
Kennedy, writing for the majority, said, "[W]hen 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."
Kennedy's ruling, while siding with former District Attorney Gil Garcetti, said government employees do retain some First Amendment rights as citizens, and he noted the existence of state and federal whistleblower-protection laws. “Exposing government inefficiency and misconduct is a matter of considerable significance,” Kennedy wrote, adding that whistleblower-protection laws were available to employees who want to speak out.
He also noted that for government lawyers, teachers and university professors, professional codes of conduct and other considerations including academic freedom could provide safeguards for speaking out.
But the four dissenting justices said Kennedy's opinion draws illogical lines that would lead to more litigation. Justice John Paul Stevens wrote, "It is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description." Stevens also said the ruling could give employees the incentive to air their concerns publicly — with some First Amendment protection — before going to their superiors with the same concerns.
Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer also dissented.
“[A] government paycheck does nothing to eliminate the value to an individual of speaking on public matters, and there is no good reason for categorically discounting a speaker's interest in commenting on a matter of public concern just because the government employs him,” wrote Souter. “Still, the First Amendment safeguard rests on something more, being the value to the public of receiving the opinions and information that a public employee may disclose."