A principled limitation on judicial interference: Garcetti v. Ceballos.

• Author: Bernie, Andrew

Restrictions on the free speech rights of public employees were not thought to present constitutional concerns for much of American history. This traditional view was summarized by Justice Holmes, then on the Massachusetts Supreme Court: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." (1) During the last third of the twentieth century, however, the Supreme Court revisited this absolutist position and concluded that some speech by public employees could receive First Amendment protection. The Court articulated a two-part test in Connick v. Myers, (2) which set a threshold requirement that a public employee's speech must be made "as a citizen upon matters of public concern" in order to qualify for First Amendment protection from workplace discipline. If a plaintiff meets that requirement, courts must balance, under Pickering v. Board of Education, (3) "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." (4) Lower courts, however, have struggled with how to treat speech made pursuant to a public employee's official duties ever since. (5) Last Term, in Garcetti v. Ceballos, (6) the Supreme Court held that when public employees speak pursuant to their official duties, they are not entitled to First Amendment protection from workplace retaliation for the contents of that false speech. The decision was a prudent exercise of judicial restraint that avoids the specter of judicial micromanagement of governmental affairs. The Court's limited holding should also have few, if any, deleterious consequences for public discourse.

In February 2000, Richard Ceballos was working as a calendar deputy for the Los Angeles County District Attorney's office, supervising the work of other attorneys. (7) An attorney for a defendant being prosecuted by Ceballos's office informed Ceballos that he believed a deputy sheriff had lied in a search warrant affidavit. (8) Ceballos investigated the allegations and concluded that the affidavit contained "serious misrepresentations." (9) He then presented his findings to two of his supervisors, Carol Najera and Frank Sundstedt, and prepared a memorandum that recommended dismissal of the case. (10) Ceballos's statement resulted in a meeting with his supervisors and officials from the sheriff's office where one lieutenant allegedly criticized Ceballos's work. (11) Despite Ceballos's recommendation, Sundstedt decided to continue the prosecution. (12) Ceballos informed the defense attorney that he agreed that the affidavit contained false statements, and he was subpoenaed to testify for the defense at a hearing on the affidavi. (13) He also told Najera of his view that, under Brady v. Maryland, (14) he was required to give the defense a copy of the memorandum he had prepared on the search warrant. (15) Ceballos later alleged that Najera ordered him to amend his work product and to limit his testimony at the hearing. (16) Ceballos testified at the hearing, but the trial court rejected the challenge to the warrant. (17)

Ceballos claimed his superiors retaliated by demoting him and prohibiting him from handling any further murder cases, among other actions. (18) He filed an employment grievance action, but the grievance was denied upon a finding that he had not suffered any retaliation. (19) Ceballos subsequently filed suit against Najera, Sundstedt, and then-District Attorney Gil Garcetti in the United States District Court for the Central District of California, alleging retaliation in violation of his First and Fourteenth Amendment rights. The District Court granted the defendants' motion for summary judgment, concluding that because Ceballos wrote his memorandum "pursuant to his employment duties," he was "not entitled to First Amendment protection for the memo's contents." (20)

The Court of Appeals for the Ninth Circuit reversed, holding that the contents of Ceballos's memorandum were protected by the First Amendment. (21) First, the court held that Ceballos's allegations of governmental wrongdoing clearly satisfied the threshold requirement elucidated in Connick--that the public employee speak "as a citizen upon matters of public concern" as opposed to speaking "as an employee upon matters only of personal interest." (22) The Ninth Circuit did not address the issue of whether Ceballos's speech was made as a citizen and instead relied on Ninth Circuit precedent that held that a public employee's speech is not necessarily deprived of First Amendment protection when made pursuant to official duties. (23) The court followed the Supreme Court's instructions in Pickering and balanced Ceballos's interest in engaging in the speech against his supervisors' interest in reacting to it. (24) Finding the balance in Ceballos's favor, the court concluded that the defendants offered no evidence that Ceballos's speech caused any serious harm. (25)

The United States Supreme Court reversed and remanded. Writing for the Court, Justice Kennedy (26) summarized the Court's public employee speech jurisprudence and noted that, when public employees speak out, they can "impair the proper performance of governmental functions." (27) The majority also emphasized, however, "that a citizen who works for the government is nonetheless a citizen" and that both individual employees and the public at large benefit from "receiving the well-informed views of public employees engaging in civic discussion." (28) To that end, the Court declared neither that Ceballos expressed his views inside the office nor that the memo "concerned the subject matter of [his] employment" was enough to deprive his speech of First Amendment protection. (29) The Court did find dispositive, however, that Ceballos's memo was "made pursuant to his duties as a calendar deputy." (30) The Court held that when public employees engage in speech pursuant to employment responsibilities, they do not speak as citizens, and therefore the First Amendment provides no protection against workplace discipline resulting from that speech. (31)

In explaining its holding, the Court noted that restricting speech that arises out of an employment responsibility does not force the employee to give up any right he might enjoy as a private citizen. (32) Nor does restricting such speech prevent the public at large from hearing the perspectives of those employed by the government; the Court explained that its decision does not prevent employees from "participating in public debate" in their private lives but instead merely gives public employers discretion to determine how public employees' jobs are performed. (33) That discretion, the Court noted, is important. The official communications of public employees can have serious consequences for the proper maintenance of governmental operations. (34) To subject "managerial discretion" of public employee performance to Pickering balancing would necessitate an overly intrusive judicial role in the day-to-day functioning of the government. (35) It would also require an unjustified shift...