Garcetti v. Ceballos

Notable Items:

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• A full recounting of the facts is available below

Procedural History:

• Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. §1979, 42 U. S. C. §1983.
• Petitioners responded that no retaliatory actions were taken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such as staffing needs.
• Petitioners moved for summary judgment, and the District Court granted their motion. Noting that Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled to First Amendment protection for the memo’s contents.
• It held in the alternative that even if Ceballos’ speech was constitutionally protected, petitioners had qualified immunity because the rights Ceballos asserted were not clearly established.
• The Court of Appeals for the Ninth Circuit reversed, holding that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.” 361 F. 3d 1168, 1173 (2004).

Rationale

Kennedy Majority Opinion (Roberts, Scalia, Thomas, Alito)

• The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.
• 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.
• Restricting 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 has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995)
• Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. [emphasis added]
• Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail.
• A full description of the rationale is available below

Souter Dissent (Stevens, Ginsburg)

• I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.
• Part I
• Open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection by the First Amendment. See, e.g., Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 377 (1997).
• At the other extreme, a statement by a government employee complaining about nothing beyond treatment under personnel rules raises no greater claim to constitutional protection against retaliatory response than the remarks of a private employee. See Connick v. Myers, 461 U. S. 138, 147 (1983).
• In between these points lies a public employee’s speech unwelcome to the government but on a significant public issue.
• Such an employee speaking ... with a citizen’s interest, is protected from reprisal unless the statements are too damaging to the government’s capacity to conduct public business to be justified by any individual or public benefit thought to flow from the statements. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968).
• The effect of the majority’s constitutional line between these two cases, then, is that a Givhan schoolteacher is protected when complaining to the principal about hiring policy, but a school personnel officer would not be if he protested that the principal disapproved of hiring minority job applicants.
• The need for a balance hardly disappears when an employee speaks on matters his job requires him to address; rather, it seems obvious that the individual and public value of such speech is no less, and may well be greater, when the employee speaks pursuant to his duties in addressing a subject he knows intimately for the very reason that it falls within his duties.
• Would anyone deny that a prosecutor like Richard Ceballos may claim the interest of any citizen in speaking out against a rogue law enforcement officer, simply because his job requires him to express a judgment about the officer’s performance? (But the majority says the First Amendment gives Ceballos no protection, even if his judgment in this case was sound and appropriately expressed.)
• Thus, the risks to the government are great enough for us to hold from the outset that an employee commenting on subjects in the course of duties should not prevail on balance unless he speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it.
• ... it is fair to say that only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor.
• Part II
• The majority seeks support in two lines of argument extraneous to Pickering doctrine. The one turns on a fallacious reading of cases on government speech, the other on a mistaken assessment of protection available under whistle-blower statutes.
• Part II A [Spokesman vs all other public employees]
• The key to understanding the difference between this case and Rust lies in the terms of the respective employees’ jobs and, in particular, the extent to which those terms require espousal of a substantive position prescribed by the government in advance.
• Unlike the doctors in Rust, Ceballos was not paid to advance one specific policy among those legitimately available, defined by a specific message or limited by a particular message forbidden.
• “Restricting 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 has commissioned or created.” Ante, at 10.
• This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write “pursuant to official duties.” See Grutter v. Bollinger, 539 U. S. 306, 329 (2003)
• Part II B

Stevens Dissent (??) (xxx)

• The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.
• We had no difficulty recognizing that the First Amendment applied when Bessie Givhan, an English teacher, raised concerns about the school’s racist employment practices to the principal. See Givhan v. Western Line Consol. School Dist., at 413–416.
• Our silence as to whether or not her speech was made pursuant to her job duties demonstrates that the point was immaterial.
• That is equally true today, for it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description.
• Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.

Breyer Dissent (??) (xxx)

• This case asks whether the First Amendment protects public employees when they engage in speech that both (1) involves matters of public concern and (2) takes place in the ordinary course of performing the duties of a government job.
• I write separately to explain why I cannot fully accept either the Court’s or Justice Souter’s answer to the question presented.
• Part I [Common Ground]
• (1) Rather, judges must apply different protective presumptions in different contexts, scrutinizing government’s speech-related restrictions differently depending upon the general category of activity. Compare, e.g., Burson v. Freeman, 504 U. S. 191 (1992) (plurality opinion), (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980) (commercial speech), and Rust v. Sullivan, 500 U. S. 173 (1991) (government speech).
• (2) Where the speech of government employees is at issue, the First Amendment offers protection only where the offer of protection itself will not unduly interfere with legitimate governmental interests, such as the interest in efficient administration.
• (3) Where the employee speaks “as a citizen … upon matters of public concern,” the First Amendment offers protection but only where the speech survives a screening test. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968).
• (4) Our prior cases do not decide what screening test a judge should apply in the circumstances before us, namely when the government employee both speaks upon a matter of public concern and does so in the course of his ordinary duties as a government employee.
• Part II [Constitutional Obligation to Speak]
• In a word, the majority says, “never.”
• Nonetheless, there may well be circumstances with special demand for constitutional protection of the speech at issue, where governmental justifications may be limited, and where administrable standards seem readily available ....
• In such an instance, I believe that courts should apply the Pickering standard, ....
• This is such a case.
• The facts present two special circumstances that together justify First Amendment review.
• First, the speech at issue is professional speech—the speech of a lawyer. Such speech is subject to independent regulation by canons of the profession. Those canons provide an obligation to speak in certain instances. And where that is so, the government’s own interest in forbidding that speech is diminished.
• Second, the Constitution itself here imposes speech obligations upon the government’s professional employee. A prosecutor has a constitutional obligation to learn of, to preserve, and to communicate with the defense about exculpatory and impeachment evidence in the government’s possession. Kyles v. Whitley, 514 U. S. 419, 437 (1995); Brady v. Maryland, 373 U. S. 83 (1963).
• Hence, I would find that the Constitution mandates special protection of employee speech in such circumstances. Thus I would apply the Pickering balancing test here.
• Part III [Contra Souter]
• While I agree with much of Justice Souter’s analysis, .... Souter adds that “only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor.”
• Part IV [Summation]
• 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.
• But it does so only in the presence of augmented need for constitutional protection and diminished risk of undue judicial interference with governmental management of the public’s affairs.

Full Recounting of Facts

• Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los Angeles County District Attorney’s Office.
• In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant.
• The attorney informed Ceballos that he had filed a motion to traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases.
• On March 2, 2000, Ceballos submitted the memo to [his supervisors, petitioners Carol Najera and Frank] Sundstedt for his review.
• Despite Ceballos’ concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse.
• The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant.
• Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions.
• Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. §1979, 42 U. S. C. §1983.
• He alleged petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo of March 2.
• A list of the material facts is available above

Kennedy Majority Full Argument (Roberts, Scalia, Thomas, Alito)

• Part I
• See Material Facts
• See Procedural History
• ... the [Ninth Circuit] court looked to the First Amendment analysis set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and Connick [v. Myers], 461 U. S. 138. Connick instructs courts to begin by considering whether the expressions in question were made by the speaker “as a citizen upon matters of public concern.”
• The Court of Appeals determined that Ceballos’ memo, which recited what he thought to be governmental misconduct, was “inherently a matter of public concern.”
• The court did not, however, consider whether the speech was made in Ceballos’ capacity as a citizen.
• Having concluded that Ceballos’ memo satisfied the public-concern requirement, the Court of Appeals proceeded to balance Ceballos’ interest in his speech against his supervisors’ interest in responding to it.
• ... petitioners “failed even to suggest disruption or inefficiency in the workings of the District Attorney’s Office” as a result of the memo.
• [A Ninth Circuit judge] “when public employees speak in the course of carrying out their routine, required employment obligations, they have no personal interest in the content of that speech that gives rise to a First Amendment right.” [reason for retaliation was testimony (citizen), not the memo (public employee)]
• Part II [Precedent and Basis for Analysis]
• Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e.g., Pickering, supra, at 568; Connick, supra, at 147; Rankin v. McPherson, 483 U. S. 378, 384 (1987); United States v. Treasury Employees, 513 U. S. 454, 466 (1995).
• Thus, the Court concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” Pickering., at 573.
• The first [of two inquiries] requires determining whether the employee spoke as a citizen on a matter of public concern. See id., at 568. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. See Connick, supra, at 147.
• If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering, 391 U. S., at 568.
• Part III [Precedent and Analysis Applied]
• That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. See, e.g., Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979).
• The memo concerned the subject matter of Ceballos’ employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker’s job. See, e.g., ibid.; Givhan, supra, at 414.
• The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.
• 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.
• Restricting 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 has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995)
• Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. [emphasis added]
• Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail.
• {Caveat] We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions.
• [Caveat] 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.
• Part IV [Closing Remarks]
• ....
• The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
• The core of the rationale is available above

© Jonathan M. Bresler