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Court limits First Amendment protection for public employees

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NEWS MEDIA UPDATE   ·   U.S. SUPREME COURT   ·   Prior Restraints   ·   June 2, 2006

NEWS MEDIA UPDATE   ·   U.S. SUPREME COURT   ·   Prior Restraints   ·   June 2, 2006

Court limits First Amendment protection for public employees

  • Speech by government whistleblowers made in the course of official job duties is not protected by the First Amendment, the nation’s highest court ruled.

June 2, 2006  ·   Speech by government whistleblowers made in the course of official job duties is not protected by the First Amendment, the nation’s highest court ruled.

Drawing a stark line between what public employees say in the course of their job duties and what they say as concerned citizens, the U.S. Supreme Court on Tuesday limited First Amendment protection for whistleblowers.

Dissenters in the 5-4 decision said that the Court’s ruling creates the peculiar situation in which the First Amendment would not protect a public employee reporting corruption to his supervisor but would protect him if he reported that same corruption outside his capacity at work, such as in a letter to the editor.

“It seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors,” Justice John Paul Stevens wrote in dissent.

Writing for the majority, Justice Anthony M. Kennedy said 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.”

Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas joined Kennedy’s opinion, which was issued after the Court allowed a second oral argument following Alito’s appointment in January.

The case stems from a memo Richard Ceballos, a deputy district attorney in Los Angeles County, wrote to his supervisor in 2000 addressing concerns about an affidavit based on incorrect facts that a deputy sheriff used to obtain a warrant. Ceballos recommend the county drop the case because of the inaccuracies but was overruled by superiors. He also testified about the affidavit at a hearing, and in briefs told the U.S. Supreme Court that he was told he would suffer retaliation if said the affidavit contained lies, according to Justice David H. Souter’s dissent, which was joined by Justice Ruth Bader Ginsburg.

Ceballos, forced to transfer to another office after the case, sued claiming the transfer was retaliation for writing the memo — speech he argued is protected by the First Amendment. He lost in federal district court in Los Angeles but won on appeal to the U.S. Court of Appeals in San Francisco (9th Cir.). The Supreme Court agreed with the initial lower court ruling and ruled that as long as public employees are speaking as part of their official duties, as Ceballos was, the speech is not protected by the First Amendment.

What the Court did not acknowledge is that employees who blow the whistle on wrongdoing by going public may not receive constitutional speech protection, said attorney Bonnie Robin-Vergeer who represented Ceballos and argued the case before the Court.

When public employees speak as citizens addressing issues of public concern rather than as part of their official duties they will receive First Amendment protection only if the employees’ free speech interests outweigh the employer’s interest in a disruption-free workplace under the 1968 Supreme Court ruling in Pickering v. Board of Education.

The majority in Garcetti v. Ceballos did not leave room for employees acting both in their official duties and as concerned citizens to receive First Amendment protection, a position Justice Stephen G. Breyer endorsed in his dissent.

State and federal whistleblower laws may cover employees in some situations, according to the majority opinion, but Souter, in his dissent, said those laws are inadequate.

Robin-Vergeer said employees who circumvent internal office procedures and go to the media often violate office policies and fare poorly in court.

“Will they be more likely to talk to the press than before? I think that’s a hard thing to predict,” she said.

“It’s going to affect people across the board, whether they’re prosecutors or cops or whether they work in internal affairs,” she said, adding that those affected include “people at [the Federal Emergency Management Agency] who come forward and say FEMA’s not ready for the next hurricane.”

Kennedy wrote for the majority that Ceballos was acting within his job duties when he wrote the memo that provoked the retaliation. Because that fact was not disputed, the majority also said, “We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties.”

That question will be a sticking point for future litigation, Robin-Vergeer said, pointing out that investigating the sheriff’s department was not within the official duties of a prosecuting attorney like Ceballos.

Souter cautioned that the opinion could limit First Amendment protection for public school teachers and university professors who speak and write as part of their official job duties. The majority opinion countered that the Court did not need to decide whether the same analysis would apply in an academic setting.

Potentially affecting the Court’s ruling is the “Federal Employee Protection Disclosures Act,” which would expand whistleblower protection for federal employees. The bill, sponsored by Sens. Daniel K. Akaka (D-Hawaii) and Susan Collins (R-Maine), passed a Senate committee in May.

(Garcetti v. Ceballos)HB

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