Garcetti v. Ceballos, 547 U.S. 410; 126 S. Ct. 1951; 164 L. Ed. 2d 689 (2006)

Facts—Richard Ceballos, a deputy district attorney for Los Angeles County who served as a calendar deputy, concluded that an affidavit contained serious misrepresentations, and recommended dismissing the case. His superiors continued with the case, and Ceballos claims that his employers subsequently retaliated against him for expressing his opinion in a speech (and testifying on behalf of the individual being prosecuted). A U.S. District Court concluded that Cebellos was not entitled to First Amendment protection for a memorandum he wrote in connection with his job, and that, even if he was, his employer had immunity. The U.S. Ninth Circuit Court reversed and held that Ceballos’s speech was protected by the First Amendment.

Question—Is Ceballos’s workplace speech protected from retaliation by the First Amendment?

Decision—No, protection of speech in the workplace is more limited than that of private citizens.

Reasons—J. Kennedy (5–4). The Court has qualified earlier rulings prohibiting employees from objections to conditions placed on employment, including speech. In Pickering v. Board of Education (1968), the Court focused on whether an “employee spoke as a citizen on a matter of public concern” and, if so, whether the “government entity had an adequate justification for treating the employee differently from any other member of the general public.” Public employees are subject to conditions that members of the general public are not. Ceballos expressed his opinions “pursuant to his duties as a calendar deputy,” and “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.” The Court is not in a position to displace “managerial discretion by judicial supervision,” and it does not decide what the ramifications are in the context of “scholarship or teaching.” Whistle blower laws and labor codes are available to protect employees from abusing their supervisory discretion.

J. Stevens, dissenting. Public employees remain citizens at the office and while they can be disciplined for “inflammatory or misguided” speech, they

should be protected when their speech is simply unwelcome “because it reveals facts that the supervisor would rather not have anyone else discover.”

J. Souter, dissenting. Although employers retain interests in “demanding competence, honesty, and judgment from employees who speak for it in doing their work,” employees should be protected by the First Amendment when addressing possible official wrongdoing. “[T]he very idea of categorically separating the citizen’s interest from the employee’s interest” is untenable. This is not a case where Ceballos’s own speech would be mistaken for that of the government itself, and laws protecting whistle-blowers are a “patchwork” that are inadequate to the task.

J. Breyer, dissenting. The Court should protect Ceballos’s speech under the Pickering precedent: “Where professional and special constitutional obligations are both present, the need to protect the employee’s speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available.” “I conclude that the First Amendment sometimes does authorize judicial actions based upon a government employee’s speech that both (1) involves a matter of public concern and also (2) takes place in the course of ordinary job-related duties.”