NIT-PICK"ER"ING?
Rare is the occasion on which the Supreme Court hears the re-argument of a case before the Court delivers an opinion upon that case. Can you think of a case that was thusly re-argued? Off the very top of my head, I can only think of two (actually, three; the third was re-argued with the same issue but with different litigants). By the way, if you were left with one guess, and decided to blurt out the most famous Supreme Court case in the past thirty-three years, you'd be correct: Roe v. Wade was argued twice. Brown v. Board was also argued twice. Roe was argued a second time because new members had arrived on the Court since the first argument; Brown was reargued since the Court wanted to reach the decision it ultimately reached, but needed a rationale that the first argument did not present.
Today, re-argument was made in Garcetti v. Ceballos: This case, on its face, is not as important as the two already mentioned, nor does it have the potential to become thus; however, the case is one of the most important First Amendment cases to come down the pike in at least twenty five years (as was McConnell v. FEC), which makes it important enough.
Here are "the facts" (presented in somewhat narrative and biased, but essentially correct, form) courtesy of scotus.blog (yes, a blog about the Supreme Court - great site!), as presented BEFORE the case was first argued.
"Los Angeles County deputy district attorney Richard Ceballos may be in trouble for one simple reason: he performed his job exactly as he was supposed to. Informed by a defense attorney in a case being prosecuted by the district attorney’s office that one of the arresting police officers may have lied in a search warrant affidavit, Ceballos vigorously investigated the charge and found evidence of wrongdoing. Respecting the chain of command, Ceballos drafted a memo raising his concerns and recommended dismissal of the case. Since Ceballos could not dismiss the case without supervisor approval, he discussed his concerns with one of his supervisors and provided him with the memo. Ceballos and his supervisors met with the Sheriff’s office to discuss their concerns, but the meeting convinced Ceballos’s superiors to pursue the case despite flaws in the affidavit. Knowing that Ceballos had legitimate concerns about the affidavit, defense counsel in the case subpoenaed Ceballos to testify at the hearing. Ceballos agreed to testify and—pursuant to what he believed were his prosecutorial obligations—provided the memo to defense counsel. When Ceballos was allegedly punished for speaking out, he responded by filing a Section 1983 action (42 U.S.C. 1983, which provides that a citizen shall not be deprived of constitutional rights "under color of state law") contending that he was retaliated against for engaging in speech protected by the First Amendment. Legally, however, Ceballos has one critical problem: he did exactly what his job required.
Ironic as the situation appears, the case of Garcetti v. Ceballos turns on the question of whether the First Amendment ever protects the job-required speech of public employees. Before the 1968 case of Pickering v. Board of Education, government employees enjoyed few First Amendment protections. But in Pickering, the Court bestowed protection upon the speech of a public school teacher who was fired after he published a letter in the local newspaper criticizing the school’s funding policies. Noting that the government has a special interest in regulating the speech of its own employees, the Pickering Court developed a two-step test, which first asks whether the speech addresses a matter of public concern. If it does, the court then balances "the interests of the [employee], as a citizen, in commenting upon matters of public concern" against "the interest of the State (or city, or Federal government), as an employer, in promoting the efficiency of the public services it performs through its employees."
In Connick v. Myers (1983), a "progeny" case of Pickering, the Supreme Court further refined the test, holding that a government employee can only pass the first threshold "public concern" step when the employee "speaks . . . as a citizen upon matters of public concern," and not when he speaks "as an employee upon matters only of personal interest." (In Connick, Assistant District Attorney Myers was found to have been terminated by New Orleans DA Harry Connick-yes, THAT Harry Connick-after she distributed a questionnaire to her fellow ADA's seeking their input regarding such matters as "how timely complaints were processed," "how efficiently the office functioned," and so on. The Court, 5-4, held that Myers' questionnaire was designed to solicit information relating to the internal functions of the office (which she, the Court said, hoped would prove that she was not the only person dissatisfied with Connick's leadership). The dissent noted that, while Myers may have had a "personal interest" in knowing the answers to the questions she posed, the questions undoubtedly touched upon matters of public concern - for, after all, what could be a greater matter of public concern than the issue of whether a DA's office is doing its job properly?
The problem for Richard Ceballos is that he does not fit neatly into either of the categories established by Connick. Even the Los Angeles County District Attorney’s office appears to concede that bringing police misconduct to light is a matter of public concern. However, since Ceballos did so pursuant to his job requirements, he was not speaking "as a citizen," but rather "as an employee." (So the author of this article says. The 9th Circuit Court of Appeals found that Ceballos' First Amendment rights were violated, which is why Garcetti's name is first in the caption. Moreover, the argument that EVERY employee who brings misconduct to his employer's attention is just doing his job "as an employee," an argument never definitively settled by the Supreme Court, is specious: for example, the federal Whistleblower Protection Act provides that no employer shall engage in reprisal in response to an employee's making a protected disclosure - i.e. a properly articulated "whistleblowing claim." If the above argument were in fact the law, then the WPA would and could not exist, yet courts that have seemed to buy the argument have nonetheless recognized the validity of the WPA. Moreover, the Court that specializes in reviewing WPA claims has held that, while as a general matter, employees whose SPECIFIC job duty - i.e. job description - includes the reporting of wrongdoing - are barred from bringing whistleblower complaints if the complaint was made pursuant to the performance of this duty, employees whose specific duty is something else - say, prosecuting, are NOT barred from bringing whistleblower claims. After all, EVERY employee is REQUIRED, on some level, regulatorily, contractually, morally, ethically, or otherwise, to report wrongdoing - but some employees get paid to do so and some face different disciplinary consequences for not doing so than others. The very existence of Pickering puts the lie to the notion that every employee who reports wrongdoing "just happens to be doing his job," and therefore is shorn of 1st Amendment protection. One cannot stress enough how stupid this notion is. What if the employee (negligently) reported the wrongdoing through improper channels? Was he "just doing his job?" What if his employer had a written policy ordering him to keep silent. "Just doing his job?" Also, if Mr. Ceballos was just "doing his job," then why was he fired? Do people get routinely fired for doing their jobs? The primary speciousness surrounding those who engage in the circular reasoning that doing your job=being an employee and being an employee=doing your job and that both=no 1st Amendment protection can perhaps best be highlighted as so: yes, public employees who report matters of wrongdoing are, in a crudge, unilluminative sense, "doing their job," and are reporting, on some level, "matters of personal interest." But the only way these employees WERE ABLE TO OBTAIN THE INFORMATION IN THE FIRST PLACE - the only reason why they were able to report the wrongdoing that supposedly is entitled to 1st Amendment protection - IS PRECISELY BECAUSE THEY ARE public employees - employees "doing their job." Yes, I am fired up about this issue because the lower courts and the Supreme Court have pissed all over Pickering).
The Supreme Court has agreed to resolve the circuit split over whether the First Amendment applies when the employee speaks "as an employee" upon matters of public concern. (How, one asks, can one tell whether an employee speaks as an "employee or as a citizen"? How do we "know" that Pickering was speaking as a citizen, whereas Ceballos was speaking as an employee? Answer? The Pickering court declared by fiat that Pickering was speaking as a citizen, just as the Supreme Court, with the addition of Justice Alito (whose presence necessitated the re-argument; O'Connor heard the case and then retired; an opinion was drafted in which the Court deadlocked 4-4, thus necessitating the reargumentation of this case), will declare, by fiat, that Ceballos is speaking as an employee. Why? To bring him paradigmatically closer to Ms. Myers than to Mr. Pickering so as to allow the Court to declare: "Ceballos, you lose!"
The district court granted summary judgment in favor of the defendants. Despite recognizing that in Southern California, "police misconduct is a matter of great political and social concern to the community," the judge refused to allow case to go forward on the ground that Ceballos’s memo was written "as part of his job." In an opinion written by Judge Stephen Reinhardt, the Ninth Circuit reversed 3-0. The panel held that that expression by public employees is constitutionally protected when they speak as employees—so long as the employee is speaking on a matter of public concern and her interest outweighs her employer’s interest in an efficient workplace. In a concurring opinion, Judge Diarmuid O’Scannlain suggested that he felt bound by Ninth Circuit precedent, but recommended taking a different course by adopting a "per se rule," whereby public officials would automatically lose their First Amendment protection if their speech took place in the course of carrying out employment obligations. Judge O’Scannlain noted that the majority’s decision "planted the seed of a constitutional case in every task that every public employee ever performs, every time that any public employee merely does what he is supposed to do (supposed to do according to what, I ask?." In retort, Judge Reinhardt warned that such a per se rule "would be particularly detrimental to whistle-blowers, such as Ceballos, who report official misconduct up the chain of command," and that whistleblowers would have a perverse incentive to air their complaints publicly through the media.
In requesting a reversal, petitioner warns the Court against extending First Amendment protection to job-required speech. Petitioner uses its brief to remind the Court that before 1968, public employees had few First Amendment protections. Pickering was intended to ensure that public employees would enjoy comparable protections as private citizens when they spoke like private citizens (whatever that means - the Court has drawn an arbitrary distinction between what it means to speak like an employee v. what it means to speak like a private citizen). But under respondent’s reading, public employees would suddenly have vast protections, unintended by the Pickering Court, which would cover speech that has no counterpart for private citizens (not true, of course; courts still apply the "public concern" part of the test in such a restrictive fashion that even if one is found to be speaking as a private citizen, he STILL loses).
Further, petitioner argues that respondent is essentially reading "as a citizen" out of the case law (GOOD!). Instead, petitioner suggests that the first step in the Pickering/Connick test be interpreted as a two-part threshold. That the speech touches on a matter of public concern is necessary, but not sufficient. The employee must also be speaking "as a citizen," which he never is when the speech is job-required. (In other words, there can be no such thing as protection for whistleblowing - corruption for corruption's sake is to be prized over case-by-case adjudication)
Petitioner also makes a policy-based argument, warning that affirmation of the Ninth Circuit’s decision would lead to an onslaught of litigation since government employees frequently speak on matters of public concern (the old "slippery slope" cry; 99% of all cases never go to trial; this would still be true regardless of what the Supreme Court did). Governments would be forced to bear the expense, inconvenience and workplace disruptions caused by frequent litigation (actually, they'd be able to file a motion to dismiss in response to the complaint, and to have said complaint dismissed in response, in 99% of the cases, because even if the 9th Circuit were affirmed, frivolous cases are ALWAYS brought under EVERY statute). This litigation would also hamstring agencies in the performance of their duties (i.e. it might actually make some people refrain from retaliation), and petitioner unsubtly suggests that agencies combating terrorism would be distracted from their duties (the old 9/11 card).
The Solicitor General’s brief adds few unique arguments but it unquestionably makes the same arguments more powerfully. The Solicitor General’s legal argument criticizes respondent for "entirely ignor[ing]" the Court’s citizen/employee distinction (just as the Court itself does). The Solicitor General argues that in First Amendment jurisprudence, the citizen/employee distinction is just as important as the public concern/personal interest distinction, and a public employee must fulfill both prerequisites to warrant protection.
Respondent reads the history of First Amendment protections for public employees quite differently. Respondent argues that the Court did not extend First Amendment protection to public employees in Pickering solely to protect the personal interest of the speaker. The Court was also concerned with the fact that when government employees are silenced, the public is the principal loser. By extending First Amendment protections to public employees, the Court hoped to promote self-governance and the ability of the public to hold government officials accountable. Contrary to petitioner’s suggestion, it would be far more damaging to healthy government to silence whistle-blowers than protect them. "To silence a public employee who seeks to bring to light a problem in her workplace of public importance . . . subverts the public’s interest in holding government officials accountable. . . . Equally important, silencing a public employee impairs the employer’s ability to manage itself and correct its own failings." Respondent points to petitioner’s example of fighting terrorism, and suggests that the government’s efforts to prevent terrorism are served, not hindered, by protecting the speech of those in the best position to prevent harm. Further, respondent argues that petitioner’s concern about hamstringing agencies is overblown. To the extent that employees violate the law or their employment responsibilities in speaking out, they will almost certainly forgo First Amendment protection since the balancing test would favor the government’s interest in promoting efficiency.
In its amicus brief, the Solicitor General attempts to deflate respondent’s policy arguments, suggesting that a reversal of the Ninth Circuit would not have drastic effects. Whistle-blowers who speak as citizens, i.e. who speak about matters not within their job description, will continue to be protected. And whistle-blowers who act pursuant to their job will not have a perverse incentive to reveal wrongdoing externally since they would not receive First Amendment protection anyway (this assumes these people are familiar with Supreme Court nuance). Such employees would fail at step two of the Pickering analysis by violating the law (what if the employee decides to sue, claiming that his 1st Amendment rights were violated, and that the defense that he violated the law does not apply because the law is invalid? What if "the law" in question itself violates the 1st Amendment?) or their job requirements.
With its legal argument, respondent denies that his reading of the case law ignores the phrase "as a citizen." But respondent suggests that whether an employee speaks "as a citizen" is fundamentally connected to whether they speak "on a matter of public concern" and should not be artificially separated. When a government employee like Ceballos raises a significant matter of public concern, he or she is speaking "as a citizen," even if he or she does so pursuant to job requirements. In the alternative, respondent argues that Ceballos was speaking both as an employee trying to improve the workplace and as a concerned citizen (YES! Finally, someone gets it! There is no false choice!) Respondent denies the petitioners’ suggestion that Ceballos was somehow required to bring the police misconduct to light. Rather, he asserts, Ceballos made a discretionary call to investigate the wrongdoing and suggest dismissal—indeed, we know it was discretionary because his supervisors made a different decision (this may be hindsight logic, but what exactly does his employee handbook say? Why are the free speech haters so sure that all complaints (which they hate anyway) are job requirements?)
Thus, while Ceballos may have been acting in an employment setting, he was also acting as a concerned citizen to the extent that he made a discretionary decision to bring wrongdoing to light. The haters want us to beliee that an employee, simply because he is an employee, forfeits his status as a concerned citizen, and that every complaint is self-serving. Again, though, the only reason the complaints arise is because the complainers ARE employees!
The author concludes:
"Inevitably, the Court’s decision in Garcetti will swing the pendulum of First Amendment protection in one direction or another. By reversing the Ninth Circuit, the Court would restrict the First Amendment to whistle-blowers who reveal wrongdoing out of the goodness of their hearts and not pursuant to any job responsibilities. Such a decision would reflect concern over exposing the government to increased litigation of a type that is inherently fact-bound and difficult to resolve at summary judgment. Conversely, by affirming the Ninth Circuit, the Court would potentially expand protection to any government official speaking on a matter of public concern (provided the employee could pass the balancing step). Arguably, such a decision would reflect the Court’s reluctance to prioritize the interests of government administrators over the interests of the public and the government itself. "
Ceballos, and free speech will lose. Pity.
Today, re-argument was made in Garcetti v. Ceballos: This case, on its face, is not as important as the two already mentioned, nor does it have the potential to become thus; however, the case is one of the most important First Amendment cases to come down the pike in at least twenty five years (as was McConnell v. FEC), which makes it important enough.
Here are "the facts" (presented in somewhat narrative and biased, but essentially correct, form) courtesy of scotus.blog (yes, a blog about the Supreme Court - great site!), as presented BEFORE the case was first argued.
"Los Angeles County deputy district attorney Richard Ceballos may be in trouble for one simple reason: he performed his job exactly as he was supposed to. Informed by a defense attorney in a case being prosecuted by the district attorney’s office that one of the arresting police officers may have lied in a search warrant affidavit, Ceballos vigorously investigated the charge and found evidence of wrongdoing. Respecting the chain of command, Ceballos drafted a memo raising his concerns and recommended dismissal of the case. Since Ceballos could not dismiss the case without supervisor approval, he discussed his concerns with one of his supervisors and provided him with the memo. Ceballos and his supervisors met with the Sheriff’s office to discuss their concerns, but the meeting convinced Ceballos’s superiors to pursue the case despite flaws in the affidavit. Knowing that Ceballos had legitimate concerns about the affidavit, defense counsel in the case subpoenaed Ceballos to testify at the hearing. Ceballos agreed to testify and—pursuant to what he believed were his prosecutorial obligations—provided the memo to defense counsel. When Ceballos was allegedly punished for speaking out, he responded by filing a Section 1983 action (42 U.S.C. 1983, which provides that a citizen shall not be deprived of constitutional rights "under color of state law") contending that he was retaliated against for engaging in speech protected by the First Amendment. Legally, however, Ceballos has one critical problem: he did exactly what his job required.
Ironic as the situation appears, the case of Garcetti v. Ceballos turns on the question of whether the First Amendment ever protects the job-required speech of public employees. Before the 1968 case of Pickering v. Board of Education, government employees enjoyed few First Amendment protections. But in Pickering, the Court bestowed protection upon the speech of a public school teacher who was fired after he published a letter in the local newspaper criticizing the school’s funding policies. Noting that the government has a special interest in regulating the speech of its own employees, the Pickering Court developed a two-step test, which first asks whether the speech addresses a matter of public concern. If it does, the court then balances "the interests of the [employee], as a citizen, in commenting upon matters of public concern" against "the interest of the State (or city, or Federal government), as an employer, in promoting the efficiency of the public services it performs through its employees."
In Connick v. Myers (1983), a "progeny" case of Pickering, the Supreme Court further refined the test, holding that a government employee can only pass the first threshold "public concern" step when the employee "speaks . . . as a citizen upon matters of public concern," and not when he speaks "as an employee upon matters only of personal interest." (In Connick, Assistant District Attorney Myers was found to have been terminated by New Orleans DA Harry Connick-yes, THAT Harry Connick-after she distributed a questionnaire to her fellow ADA's seeking their input regarding such matters as "how timely complaints were processed," "how efficiently the office functioned," and so on. The Court, 5-4, held that Myers' questionnaire was designed to solicit information relating to the internal functions of the office (which she, the Court said, hoped would prove that she was not the only person dissatisfied with Connick's leadership). The dissent noted that, while Myers may have had a "personal interest" in knowing the answers to the questions she posed, the questions undoubtedly touched upon matters of public concern - for, after all, what could be a greater matter of public concern than the issue of whether a DA's office is doing its job properly?
The problem for Richard Ceballos is that he does not fit neatly into either of the categories established by Connick. Even the Los Angeles County District Attorney’s office appears to concede that bringing police misconduct to light is a matter of public concern. However, since Ceballos did so pursuant to his job requirements, he was not speaking "as a citizen," but rather "as an employee." (So the author of this article says. The 9th Circuit Court of Appeals found that Ceballos' First Amendment rights were violated, which is why Garcetti's name is first in the caption. Moreover, the argument that EVERY employee who brings misconduct to his employer's attention is just doing his job "as an employee," an argument never definitively settled by the Supreme Court, is specious: for example, the federal Whistleblower Protection Act provides that no employer shall engage in reprisal in response to an employee's making a protected disclosure - i.e. a properly articulated "whistleblowing claim." If the above argument were in fact the law, then the WPA would and could not exist, yet courts that have seemed to buy the argument have nonetheless recognized the validity of the WPA. Moreover, the Court that specializes in reviewing WPA claims has held that, while as a general matter, employees whose SPECIFIC job duty - i.e. job description - includes the reporting of wrongdoing - are barred from bringing whistleblower complaints if the complaint was made pursuant to the performance of this duty, employees whose specific duty is something else - say, prosecuting, are NOT barred from bringing whistleblower claims. After all, EVERY employee is REQUIRED, on some level, regulatorily, contractually, morally, ethically, or otherwise, to report wrongdoing - but some employees get paid to do so and some face different disciplinary consequences for not doing so than others. The very existence of Pickering puts the lie to the notion that every employee who reports wrongdoing "just happens to be doing his job," and therefore is shorn of 1st Amendment protection. One cannot stress enough how stupid this notion is. What if the employee (negligently) reported the wrongdoing through improper channels? Was he "just doing his job?" What if his employer had a written policy ordering him to keep silent. "Just doing his job?" Also, if Mr. Ceballos was just "doing his job," then why was he fired? Do people get routinely fired for doing their jobs? The primary speciousness surrounding those who engage in the circular reasoning that doing your job=being an employee and being an employee=doing your job and that both=no 1st Amendment protection can perhaps best be highlighted as so: yes, public employees who report matters of wrongdoing are, in a crudge, unilluminative sense, "doing their job," and are reporting, on some level, "matters of personal interest." But the only way these employees WERE ABLE TO OBTAIN THE INFORMATION IN THE FIRST PLACE - the only reason why they were able to report the wrongdoing that supposedly is entitled to 1st Amendment protection - IS PRECISELY BECAUSE THEY ARE public employees - employees "doing their job." Yes, I am fired up about this issue because the lower courts and the Supreme Court have pissed all over Pickering).
The Supreme Court has agreed to resolve the circuit split over whether the First Amendment applies when the employee speaks "as an employee" upon matters of public concern. (How, one asks, can one tell whether an employee speaks as an "employee or as a citizen"? How do we "know" that Pickering was speaking as a citizen, whereas Ceballos was speaking as an employee? Answer? The Pickering court declared by fiat that Pickering was speaking as a citizen, just as the Supreme Court, with the addition of Justice Alito (whose presence necessitated the re-argument; O'Connor heard the case and then retired; an opinion was drafted in which the Court deadlocked 4-4, thus necessitating the reargumentation of this case), will declare, by fiat, that Ceballos is speaking as an employee. Why? To bring him paradigmatically closer to Ms. Myers than to Mr. Pickering so as to allow the Court to declare: "Ceballos, you lose!"
The district court granted summary judgment in favor of the defendants. Despite recognizing that in Southern California, "police misconduct is a matter of great political and social concern to the community," the judge refused to allow case to go forward on the ground that Ceballos’s memo was written "as part of his job." In an opinion written by Judge Stephen Reinhardt, the Ninth Circuit reversed 3-0. The panel held that that expression by public employees is constitutionally protected when they speak as employees—so long as the employee is speaking on a matter of public concern and her interest outweighs her employer’s interest in an efficient workplace. In a concurring opinion, Judge Diarmuid O’Scannlain suggested that he felt bound by Ninth Circuit precedent, but recommended taking a different course by adopting a "per se rule," whereby public officials would automatically lose their First Amendment protection if their speech took place in the course of carrying out employment obligations. Judge O’Scannlain noted that the majority’s decision "planted the seed of a constitutional case in every task that every public employee ever performs, every time that any public employee merely does what he is supposed to do (supposed to do according to what, I ask?." In retort, Judge Reinhardt warned that such a per se rule "would be particularly detrimental to whistle-blowers, such as Ceballos, who report official misconduct up the chain of command," and that whistleblowers would have a perverse incentive to air their complaints publicly through the media.
In requesting a reversal, petitioner warns the Court against extending First Amendment protection to job-required speech. Petitioner uses its brief to remind the Court that before 1968, public employees had few First Amendment protections. Pickering was intended to ensure that public employees would enjoy comparable protections as private citizens when they spoke like private citizens (whatever that means - the Court has drawn an arbitrary distinction between what it means to speak like an employee v. what it means to speak like a private citizen). But under respondent’s reading, public employees would suddenly have vast protections, unintended by the Pickering Court, which would cover speech that has no counterpart for private citizens (not true, of course; courts still apply the "public concern" part of the test in such a restrictive fashion that even if one is found to be speaking as a private citizen, he STILL loses).
Further, petitioner argues that respondent is essentially reading "as a citizen" out of the case law (GOOD!). Instead, petitioner suggests that the first step in the Pickering/Connick test be interpreted as a two-part threshold. That the speech touches on a matter of public concern is necessary, but not sufficient. The employee must also be speaking "as a citizen," which he never is when the speech is job-required. (In other words, there can be no such thing as protection for whistleblowing - corruption for corruption's sake is to be prized over case-by-case adjudication)
Petitioner also makes a policy-based argument, warning that affirmation of the Ninth Circuit’s decision would lead to an onslaught of litigation since government employees frequently speak on matters of public concern (the old "slippery slope" cry; 99% of all cases never go to trial; this would still be true regardless of what the Supreme Court did). Governments would be forced to bear the expense, inconvenience and workplace disruptions caused by frequent litigation (actually, they'd be able to file a motion to dismiss in response to the complaint, and to have said complaint dismissed in response, in 99% of the cases, because even if the 9th Circuit were affirmed, frivolous cases are ALWAYS brought under EVERY statute). This litigation would also hamstring agencies in the performance of their duties (i.e. it might actually make some people refrain from retaliation), and petitioner unsubtly suggests that agencies combating terrorism would be distracted from their duties (the old 9/11 card).
The Solicitor General’s brief adds few unique arguments but it unquestionably makes the same arguments more powerfully. The Solicitor General’s legal argument criticizes respondent for "entirely ignor[ing]" the Court’s citizen/employee distinction (just as the Court itself does). The Solicitor General argues that in First Amendment jurisprudence, the citizen/employee distinction is just as important as the public concern/personal interest distinction, and a public employee must fulfill both prerequisites to warrant protection.
Respondent reads the history of First Amendment protections for public employees quite differently. Respondent argues that the Court did not extend First Amendment protection to public employees in Pickering solely to protect the personal interest of the speaker. The Court was also concerned with the fact that when government employees are silenced, the public is the principal loser. By extending First Amendment protections to public employees, the Court hoped to promote self-governance and the ability of the public to hold government officials accountable. Contrary to petitioner’s suggestion, it would be far more damaging to healthy government to silence whistle-blowers than protect them. "To silence a public employee who seeks to bring to light a problem in her workplace of public importance . . . subverts the public’s interest in holding government officials accountable. . . . Equally important, silencing a public employee impairs the employer’s ability to manage itself and correct its own failings." Respondent points to petitioner’s example of fighting terrorism, and suggests that the government’s efforts to prevent terrorism are served, not hindered, by protecting the speech of those in the best position to prevent harm. Further, respondent argues that petitioner’s concern about hamstringing agencies is overblown. To the extent that employees violate the law or their employment responsibilities in speaking out, they will almost certainly forgo First Amendment protection since the balancing test would favor the government’s interest in promoting efficiency.
In its amicus brief, the Solicitor General attempts to deflate respondent’s policy arguments, suggesting that a reversal of the Ninth Circuit would not have drastic effects. Whistle-blowers who speak as citizens, i.e. who speak about matters not within their job description, will continue to be protected. And whistle-blowers who act pursuant to their job will not have a perverse incentive to reveal wrongdoing externally since they would not receive First Amendment protection anyway (this assumes these people are familiar with Supreme Court nuance). Such employees would fail at step two of the Pickering analysis by violating the law (what if the employee decides to sue, claiming that his 1st Amendment rights were violated, and that the defense that he violated the law does not apply because the law is invalid? What if "the law" in question itself violates the 1st Amendment?) or their job requirements.
With its legal argument, respondent denies that his reading of the case law ignores the phrase "as a citizen." But respondent suggests that whether an employee speaks "as a citizen" is fundamentally connected to whether they speak "on a matter of public concern" and should not be artificially separated. When a government employee like Ceballos raises a significant matter of public concern, he or she is speaking "as a citizen," even if he or she does so pursuant to job requirements. In the alternative, respondent argues that Ceballos was speaking both as an employee trying to improve the workplace and as a concerned citizen (YES! Finally, someone gets it! There is no false choice!) Respondent denies the petitioners’ suggestion that Ceballos was somehow required to bring the police misconduct to light. Rather, he asserts, Ceballos made a discretionary call to investigate the wrongdoing and suggest dismissal—indeed, we know it was discretionary because his supervisors made a different decision (this may be hindsight logic, but what exactly does his employee handbook say? Why are the free speech haters so sure that all complaints (which they hate anyway) are job requirements?)
Thus, while Ceballos may have been acting in an employment setting, he was also acting as a concerned citizen to the extent that he made a discretionary decision to bring wrongdoing to light. The haters want us to beliee that an employee, simply because he is an employee, forfeits his status as a concerned citizen, and that every complaint is self-serving. Again, though, the only reason the complaints arise is because the complainers ARE employees!
The author concludes:
"Inevitably, the Court’s decision in Garcetti will swing the pendulum of First Amendment protection in one direction or another. By reversing the Ninth Circuit, the Court would restrict the First Amendment to whistle-blowers who reveal wrongdoing out of the goodness of their hearts and not pursuant to any job responsibilities. Such a decision would reflect concern over exposing the government to increased litigation of a type that is inherently fact-bound and difficult to resolve at summary judgment. Conversely, by affirming the Ninth Circuit, the Court would potentially expand protection to any government official speaking on a matter of public concern (provided the employee could pass the balancing step). Arguably, such a decision would reflect the Court’s reluctance to prioritize the interests of government administrators over the interests of the public and the government itself. "
Ceballos, and free speech will lose. Pity.
posted by EnterCenter at 12:18 PM
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