Garcetti v. Ceballos and the Altered Landscape of First Amendment Free Speech Claims
| Publication year | 2011 |
| Pages | 32 |
By Michael Jilka.
I. Introduction
In the popular imagination, Los Angeles District Attorney Gil Garcetti will be forever linked to his unsuccessful double homicide prosecution against O.J. Simpson. But Garcetti's impact on the law will more likely be associated with a landmark 2006 U.S. Supreme Court decision that altered the law surrounding First Amendment free speech claims. The Garcetti v. Ceballos case holds that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes and enjoy no constitutional protection.[1] In so holding, the Court truncated the scope of the constitutional protection afforded to free speech claims.
In 2002, the Journal of the Kansas Bar Association published my article entitled "Free Speech Rights of Public Emloyees."[2]Unlike manufactured products, articles may not be recalled after subsequent events render them defective. Garcetti has "profoundly alter[ed] how courts view First Amendment retaliation claims"[3] and added a new layer of complexity to First Amendment free speech claims. This article seeks to explain Garcetti and its major impact upon First Amendment jurisprudence.
II. Garcetti Alters the Test for Free Speech Claims
Prior to Garcetti, a series of Supreme Court cases had developed a four-pronged test to analyze First Amendment free speech claims. A court deciding such a claim asked: (1) Did the public employee speak as a citizen on a matter of public concern? (2) If the employee spoke as a citizen on a matter of public concern, did the individual's speech interest outweigh the government's interest in efficient administration? (3) If the individual's speech interest outweighed the government's interest, did the government commit a retaliatory employment action because of the employee's speech? (4) Even if the government retaliated against the employee's speech, would the government have taken the same action if the speech had not occurred?[4] The first two prongs were questions of law for the Court to decide, while the latter two prongs were questions of fact.[5] It was against this backdrop that the Garcetti case arose.
Richard Ceballos was a deputy district attorney in the Los Angeles District Attorney's Office. He was a calendar deputy and exercised certain supervisory responsibilities over other lawyers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. He told Ceballos that an affidavit used to obtain a critical search warrant contained inaccuracies.
Ceballos examined the affidavit and visited the location it described. He determined the affidavit contained serious misrepresentations. The affidavit referred to a long driveway that Ceballos thought should be referred to as a separate roadway. Ceballos also questioned the affidavit's statement that tire tracks led from a stripped-down truck to the premises covered by the warrant.
Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff, but did not receive a satisfactory explanation for the perceived inaccuracies. Caballos then relayed his findings to his two supervisors. He followed up by preparing a disposition memorandum on March 2, 2000. The memorandum explained his concerns and recommended dismissal of the case. A few days later, Ceballos submitted another memo to his supervisor describing a second telephone conversation between himself and the warrant affiant.
A meeting ensued between Ceballos, his supervisors, the warrant affiant, and other sheriff's department employees. Tempers flared at the meeting. A sheriff's department lieutenant sharply criticized Ceballos for his handling of the case. The supervisors decided to continue the prosecution. The defense filed a motion to challenge the warrant and called Ceballos to recount his observations about the affidavit. The trial court ultimately rejected the challenge to the warrant.
In the aftermath of these events, Ceballos claimed he was subjected to a series of retaliatory employment actions. He was reassigned from his calendar deputy position and denied a promotion. Ceballos then filed a lawsuit in federal court alleging he had been retaliated against based on his March 2 memo. The district court granted Garcetti's summary judgment motion. The court reasoned that Ceballos wrote the memo pursuant to his employment duties, and was therefore not entitled to First Amendment protection. The Ninth Circuit reversed and held that "Ceballos' allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment."[6] The Supreme Court granted certiorari and reversed.
The Court first canvassed its prior employee-speech case law. Those cases sought to balance and protect both the individual and societal interests that are served when employees speak as citizens on matters of public concern, as well as the needs of government employers attempting to perform their important public functions. Turning to Ceballos' case, the Court emphasized that Ceballos' expressions were made pursuant to his duties as a calendar deputy.[7] That consideration distinguished Ceballos' case from those in which the First Amendment shielded the employee from discipline. The Court formulated a new threshold rule to govern free speech claims: "We hold 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."[8]
The Court reasoned that "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself commissioned or created."[9] Applying this rule to Ceballos' case, the Court noted that Ceballos did not act as a citizen when he went about conducting his daily professional activities. Further, he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. Ceballos acted as a government employee when he went to work and performed the tasks he was paid to perform.[10]
The Court offered several justifications for its holding. First, the Court declared that government employees retain the right to participate in public debate. This right did not, however, invest public employees with the right to perform their jobs however they saw fit.[11] Second, the Court posited that employers have heightened interests in controlling speech made by employees in their official capacities. Such communications have official consequences and create a need for substantive consistency and clarity.[12] Ceballos' memo illustrated this point. The memo demanded the attention of his supervisors and led to a heated meeting with sheriff's department employees.
Third, the Court expressed concern that a contrary ruling would commit courts to a new and intrusive role overseeing communications between government employees and their superiors in the course of official business.[13] While such a role was warranted when an employee speaks as a citizen on a matter of public concern, no such scrutiny was appropriate when the employee is simply performing his or her job duties. A contrary ruling was inconsistent with sound principles of federalism and the separation of powers.
Finally, the Court rejected a series of arguments that its holding was impracticable. The Court noted that the parties did not dispute that Ceballos wrote his memo pursuant to his employment duties. The Court emphasized that it had no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there was room for serious debate.[14] But the Court noted that such an inquiry was practical in nature. The Court cautioned that public employers could not restrict their employees' rights by creating excessively broad formal job descriptions.[15]
In response to the dissent's suggestion that its holding may have important ramifications for academic freedom,[16] the Court expressly reserved the question of whether its holding applied to academic scholarship or classroom instruction.[17]Finally, the Court acknowledged the significance of efforts to expose government inefficiency and misconduct. But those efforts found sufficient avenues of relief in what the Court characterized as the powerful network of legislative enactments protecting whistle-blowers.[18]
Garcetti was decided by a 5-4 vote. The primary dissenting opinion, authored by Justice Souter, castigated the majority for its arbitrary denial of protection for speech made pursuant to official duties. In the dissent's view, the majority's holding would deny constitutional protection to the public auditor who speaks on his discovery of embezzlement of public funds, to the building inspector who makes an obligatory report of an attempt to bribe him, or to the law enforcement officer who expressly balks at a superior's order to violate constitutional rights he is sworn to protect.[19] The dissent took the position that the interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy. The dissent argued that the Pickering balancing scheme was feasible to handle such claims and did not warrant adoption of the majority's new rule.
Garcetti does not provide a comprehensive framework for defining the scope of an employee's official duties. The task has been left to lower courts to flesh out the contours of Garcetti's holding. In the wake of Garcetti, the Tenth Circuit has interpreted...
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