Must Courts Balance Speech Made Pursuant to Job Responsibilities?

Garcetti v. Ceballos

Ceballos was a calendar deputy with the D.A.’s office, and performed certain supervisory roles. When he was asked to review an affidavit used to get a crucial search warrant he found what he believed to be serious inaccuracies and misrepresentations and wrote two memos to his superiors that caused no small discomfort for the office. When the D.A.’s office went forward with the prosecution, over Ceballos’ recommendation, Ceballo testified for the defense. Ceballos was later reassigned, transferred, and denied a promotion. Ceballos argues that he is the victim of retaliation which violates the First and Fourteenth Amendments. The question here is whether speech made in an official capacity is protected by the First Amendment.

Under Connick courts must first consider whether the statements at issue were made by the speaker “as a private citizen upon matters of public concern.” The Court of Appeals for the Ninth Circuit argued that government misconduct is inherently a matter of public concern and relied on Circuit precedent to establish that speech is not deprived of First Amendment protection when it is made “pursuant to an employment responsibility.” The court then employed a Pickering test to balance the employee’s interest as a citizen to comment on matters of public concern and his employer’s interest in the efficiency of the service. The Government as employer has broader discretion to limit speech than the Government as sovereign. That Ceballos made his speech in a memo to his boss is not dispositive, neither is the fact that the content of the speech concerned the subject matter of his employment. What is dispositive, the Court argues, is the fact that the statements were made by Ceballos “pursuant to his duties as a calendar deputy.” The speech was therefore not made in the role of a citizen and not afforded First Amendment protection. The Court contrasts this rule with the case in Pickering where the statements drawing retaliation were made in a letter to a newspaper saying the analogue to paradigmatic free speech can only be drawn when non-governmental employees could engage in the same speech. The majority also believes this is good as a matter of public policy because it will encourage agencies to create internal mechanisms receptive to criticism in order to prevent employees from concluding that the safest method of expression is public expression.

The majority also cautions against over-broad definitions of employment responsibilities, noting that this is a practical matter and that job descriptions often bear little resemblance to the employee’s real official capacity. Finally, without responding to arguments that the Constitution embodies a specific protection for academic freedom (an argument that surfaces from time to time in this line of jurisprudence) the Court states that this ruling may not apply, at least in the same manner, to a “case involving speech related to scholarship or teaching.”

Justice Stevens, dissenting, argues that the ruling is misguided because the answer to the question should be that such speech is sometimes protected by the First Amendment, not never (such as cases of retaliation for exposing corruption to superiors). Justice Souter argues that the Pickering test should apply to employment-speech so that one side could clearly win over the other in given cases but that in any given case there is no foregone conclusion. Souter criticizes the line being drawn at speech included in the employee’s job responsibilities because the need for Pickering protection does not disappear at that point. Souter’s dissent seems to take the rule of the majority regarding speech made “pursuant to” an employee’s duties to regard, instead, speech made “relating to” those duties except for one paragraph that argues that the public interest is not reduced at all when the speech is required as per employment responsibilities.

Attacking the majority, Souter criticizes the reliance on a reading of Rust v. Sullivan that accepted the Government’s prohibition on abortion counseling in connection with Title X finds. Relaying substantive policy is an integral part of some government jobs but not others, and it is only in the cases of the former that the government may have a claim of ownership on that speech (consider the difference between a District Attorney and a public university professor). This may explain the majority’s side-note about academic freedom. Souter is also unwilling to rely on statutory protection for whistleblowers.

Justice Breyer is not satisfied with Justice Souter’s change to the Pickering test, pronouncing that the Government should win unless the employee (1) “speaks on a matter of unusual importance,“ and (2) “satisfies high standards of responsibility in the way he does it” because this test would not screen out many cases. Breyer also notes that the Constitution demands certain speech such as discovery evidence sharing and thereby confers constitutional protection over some areas of speech made pursuant to job responsibilities