NEWS MEDIA UPDATE · U.S. SUPREME COURT · Prior Restraints · Oct. 13, 2005
High court hears whistleblower arguments
Oct. 13, 2005 · Whether a government employee’s job-related speech is protected by the First Amendment when it touches on matters of public concern was at issue before the U.S. Supreme Court Wednesday when it heard arguments in the case of a California whistleblower who was demoted, he alleges, after pointing out that co-workers used false statements in obtaining a search warrant.
“It is critically important that public employees . . . be able to find an avenue to communicate issues of importance,” Bonnie Robin-Vergeer told the justices on behalf of Richard Ceballos, arguing that his memorandum on a fraudulently obtained warrant amounted to a matter of public concern that should be constitutionally protected.
In the first case containing First Amendment implications since Chief Justice John Roberts took the bench, Roberts actively questioned both sides but gave little indication of his leanings. Justices pressed attorneys on the application of a test set forth in the 1968 Pickering v. Board of Education and 1983 Connick v. Myers high court cases, which the U.S. Court of Appeals in San Francisco (9th Cir.) applied in its 2004 finding that Ceballos’s speech was protected by the First Amendment. The cases set forth a two-prong test for protecting an employee’s speech. If the speech touches on a matter of public concern, it is protected so long as the employee’s free-speech interests outweigh the employer’s interest in a disruption-free, efficient workplace.
But whether the Pickering-Connick test should be applied to Ceballos in the first place is also at issue. “Job-required speech is not a characteristic that First Amendment principles should protect,” said attorney Cindy Lee, representing California district attorneys, when asked by Justice Ruth Bader Ginsberg whether the Ninth Circuit went too far in determining that Ceballos’s statements should be protected. Lee argued that routine speech in the course of an employee’s duties is not citizen speech and that the Pickering test should not apply.
Ceballos worked in a branch of the Los Angeles District Attorney’s office in early 2000 when he began investigating allegations that a sheriff’s deputy made false statements in an affidavit used to obtain a search warrant. After reviewing evidence, Ceballos wrote a memo to his superiors. In a March 2000 hearing in that case, Ceballos maintained that the affidavit contained false statements and, shortly thereafter, he alleges that his supervisors retaliated by demoting him and reassigning him to a less-desirable branch office.
Claiming that his speech was protected by the First Amendment, Ceballos’s suit against the three district attorneys was dismissed at the trial level. On appeal, the Ninth Circuit, citing Pickering, unanimously ruled that Ceballos’ memorandum warrants constitutional protection. The high court agreed to hear the case to resolve a split among the circuits as to whether employee speech such as Ceballos’ is protected by the First Amendment.
The Court is expected to rule in the spring.
(Garcetti v. Ceballos) — CZ