Wednesday, May 31, 2006

One Stop Ceballos Shop

In lieu of one of my long-winded original posts, here's a run down (edited, believe it or not) of other blawgs and news sources on the Supreme Court's Garcetti v. Ceballos opinion concerning the free speech rights of public employees (see how interesting employment law and constitutional law is?):

From Marty Lederman of SCOTUSBlog:

The looming question in the case was not so much the outcome but the Court's rationale -- and, in particular, the question whether the Court would hold that a government employee's speech in her "official capacity" is entitled to no constitutional protection -- not even of the modest Pickering/Connick/Waters variety. The Solicitor General urged the Court to hold that "the First Amendment has nothing to say about actions based on [a] public employee's performance of his duties."

Today, the Court took that very signifiant step, holding 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." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development. Or perhaps not quite. In order to issue such a holding, the Court would have had to distinguish or overrule Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979), which provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices. Citing Givhan, Justice Kennedy writes that "[t]he First Amendment protects some expressions related to the speaker’s job," even when made within the workplace. But, he argues, "[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.".

So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers. Does today's decision therefore give employees an incentive to go outside the established channels -- to take their concerns to the newspapers, instead of up the established chain to their supervisors? Justice Kennedy has two responses to this perceived "doctrinal anomoly":

And what does this decision protend for the constitutional rights of teachers in their classroom speech and in their scholarship? The answer is not yet clear. Here's Justice Kennedy again: "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."

From Jack Balkin of Balkinzation:

In the original decision in this line of cases, Pickering, the Court suggested that one reason for protecting employee speech is that employees, by their position and expertise, might have information and perspectives that would be particularly valuable contributions to the public in deliberation about public issues. Not all employees would, of course, but enough would that protecting employee speech would leverage their knowledge and expertise. (At the same time, the Court was worried that employees would use their assumed expertise to make false statements of fact that would be difficult for employers to rebut). Thus, we can see Pickering as a case about *information policy*; i.e., a set of decisions about how government should promote the creation and dissemination of valuable information throughout society. The Pickering test, as originally conceived, sought to promote the spread and diffusion of valuable information from people who would have reason to know about government policies and whether they made sense or were inefficient, unwise, corrupt, or illegal.

The problem with this vision was that it ran headlong into the government's interest in preserving workplace harmony and managerial efficiency. No employer likes an employee who makes him or her look bad, and this almost always causes strife within the workplace, since the employee who complains is almost always suggesting that someone else did a bad job, was corrupt, or in Ceballos's case, acted illegally.

Instead, the Court has retreated to a vision of employee speech cases where employees are protected only where they are least likely to be in a position to know what they are talking about, as in the case of Rankin v. McPherson.

After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer's internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, 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. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don't have to reveal their sources).

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. Perhaps more important, the Court resolves the original tension in its doctrine by creating a rule that completely undermines the doctrine's information policy goals. All the doctrine does now is protect people like the dispatcher in Rankin v. McPherson, who is contributing nothing to information about the government's operations, but is just blowing off steam. Perhaps the dispatcher does deserve First Amendment protection, but the doctrine shouldn't be organized around her.

Finally, from Paul Secunda of Workplace Prof Blog, a "does he call it, or does he call it!" bit of prophetic writing from March 2006:

As some of you might know, the Supreme Court yesterday heard reargument in the public employee case of Garcetti v. Ceballos . To refresh, Ceballos concerns a case in which:

Ceballos wrote a highly critical memorandum to his supervisors after he determined the sheriff's deputy had lied in the affidavit.

When his supervisors rejected his recommendation to drop the case, Ceballos told the defense attorney about what he thought were the deputy's lies and testified for the defendant at trial.One of the more interesting aspects of this reargument was to see what types of questions Justice Alito would ask of the litigants and whether those questions would give any indication about how far he believes courts should go in interjecting themselves into public employment free speech disputes.

Here's what Alito had to say during the oral argument according to the Associated Press:Alito actively questioned all lawyers in the case, wondering whether employers would have to specify every job duty an employee has to avoid lawsuits like the one Ceballos filed.When Alito suggested employers want to know about problems, [the employee's attorney] said there is "much evidence" that supervisors don't always like receiving "bad news."

Kind of like reading tarot cards from these sparse remarks, but my best guess would be that Justice Alito is skeptical of the employee's position that his First Amendment rights in such situations should trump the government's right to maintain an efficient workplace. In short, I think Alito will side with the majority for the proposition that even if Ceballos' speech may involve a "matter of public concern" under Connick, under the Pickering balancing of interests, the government's efficiency interests in such cases should prevail.Alternatively (and to give myself some wiggle room), the Court might find (with Justice Alito signing on to the opinion) that the threshold "matter of public concern" test has not been met because Ceballos is not talking in his role as a citizen, but in his role as an employee of the government. Under such circumstances, the Pickering balance would not even have to be reached.

Either way, look for a non-employee friendly outcome.


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