The U.S. Supreme Court announces new rule for First Amendment free speech cases: public employee whistle-blowers need not apply.

• Author: Dietzen, III, Leonard J.

On May 30, 2006, the U.S. Supreme Court issued its opinion in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), a long-awaited decision (1) which will impact millions of public employees nationwide. In Ceballos, the Court examined more than three decades of First Amendment precedents and held that the First Amendment does not protect public employees from discipline when they make statements regarding matters of public concern pursuant to their official duties. In so holding, the Court created a firm line between public employees who make statements concerning public matters (2) as citizens and those who make statements as part of their jobs. As a result, the latter must seek redress in other forums, such as civil service systems, union grievance provisions, or state and federal whistle-blower laws, when they are disciplined. This article examines the Ceballos test and its likely impact on public employees in Florida.

Ceballos' Speech

Richard Ceballos began his employment as a deputy district attorney for the Los Angeles County District Attorney's Office in 1989. (3) During the cases' relevant period, Ceballos was a calendar deputy, who exercised certain supervisory responsibilities over other prosecuting lawyers. Defense attorneys would commonly request calendar deputies to investigate pending cases. (4) In February 2000, a criminal defense attorney asked Ceballos to review the facts in an affidavit submitted by the Los Angeles County Sheriff's Department to obtain a critical search warrant because he believed they were false. At the time, a motion to traverse (i.e., challenge the warrant) was pending.

After reviewing the details in the affidavit and conducting an on-site investigation of the crime scene, Ceballos concluded that the deputy's affidavit contained serious misrepresentations. (5) Ceballos verbally relayed his conclusions to his two supervisors, and then gave them a disposition memorandum recommending dismissal of the criminal case. After a telephone conversation with the warrant affiant, Ceballos presented his supervisors with a second memorandum that was again critical of the sheriff's department's handling of this case. (6) Ceballos' two written statements (7) resulted in a heated meeting to discuss the affidavit with the affiant, other employees from the sheriff's department, and his two supervisors. In the meeting, Ceballos was sharply criticized by the sheriff's department.

Despite Ceballos' belief that the criminal case should be dismissed, his supervisors decided to press ahead with the prosecution, pending the disposition of the motion to traverse. At the hearing challenging the validity of the warrant, Ceballos was called by the defense and testified as to his concerns about the affidavit. The Court rejected the challenge to the warrant and upheld the search.

No Good Deed Goes Unpunished

Following the submission of his memoranda criticizing the sheriff's department's handling of the criminal case and recommending dismissal of the charges, Ceballos alleged that his employer retaliated against him by 1) reassigning him from his calendar deputy duties to a trial deputy position; 2) transferring him to another courthouse which required a significantly longer commute; and 3) denying him a promotion. (8) Initially, Ceballos challenged these employment actions by filing an internal grievance. After losing because of a determination that he had not suffered any retaliation, Ceballos next sued in federal district court alleging under 42 U.S.C. section 1983 that his employer violated his rights guaranteed by the First and Fourteenth amendments. The district court granted the employer's summary judgment, and opined that because Ceballos wrote his memorandum pursuant to his employment duties, he was not protected by the First Amendment. (9)

On appeal, the Ninth DCA reversed and held that criticizing the sheriff's department, as set forth in Ceballos' memoranda, constituted protected speech under the First Amendment. (10) To reach its conclusion, the Court relied on its interpretation of the Supreme Court's decisions in Pickering v. Board of Education, 391 U.S. 563 (1968), Connick v. Myers, 461 U.S. 138 (1983), and Ninth Circuit precedent. The circuit court's application of Pickering and Connick is worthy of discussion because on appeal, the Supreme Court in Ceballos explained not only why the circuit court's reading of its precedent was flawed, but it also set forth firm guidelines for all future First Amendment public employee free speech cases.

Pickering and its Progeny

...