July 10, 2006

Supreme Court Limits First Amendment Rights of Public Employees

Holland & Knight Newsletter
Trisha M. Rich

Speech by government whistleblowers made in the course of performing official job duties is not protected by the First Amendment, a narrow majority of the United States Supreme Court has held. The Court ruled that protections are not available in such circumstances because public employees are not acting as concerned citizens when they report wrongdoing in the course of their official duties.

The case, Garcetti v. Ceballos, arose when Richard Ceballos, then a lawyer with the Los Angeles County District Attorney’s Office, was asked by a defense attorney to review a criminal case. The defense attorney claimed that an affidavit relied on by the police to obtain a vital search warrant was inaccurate. After reviewing the affidavit, Ceballos concluded that it contained serious misrepresentations. In a written memorandum, Ceballos reported his findings to his supervisors and recommended dismissal of the case. The district attorney proceeded with the prosecution. Ceballos was later called as a defense witness, at which time his memorandum was submitted to the court.

Ceballos filed suit under 42 U.S.C. § 1983, the federal civil rights statute, alleging that members of the district attorney’s office subsequently retaliated against him because of the memorandum. Ceballos argued that his memorandum was an act of free speech worthy of First Amendment protection, that the members of the district attorney’s office violated his constitutional rights, and that they could not claim immunity. The district court sided with the defendants, finding that there was no First Amendment interest involved since Ceballos wrote the memorandum in a purely job-related capacity and not in his capacity as a citizen. The Ninth Circuit Court of Appeals reversed the decision.

The Supreme Court granted certiorari to answer the question of whether a public employee’s job-related speech, strictly expressed pursuant to the duties of employment, should be cloaked with First Amendment protection where it touches on a matter of public concern. On May 30, 2006, a 5-4 majority answered that question in the negative, finding that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.

In rejecting Ceballos’ allegation of unconstitutional retaliation, the dispositive factor was that Ceballos’ expressions were made pursuant to his duties as an assistant district attorney and not as a concerned citizen. The Court held that where there is an employment-related duty to speak and write on various topics, a supervisor must not be prohibited from evaluating performance.

The decision effectively draws a distinction between two types of speech engaged in by public employees: (1) statements made pursuant to official duties and (2) statements made as citizens contributing to civil discourse. Public employees who engage in the latter type of speech will receive constitutional protection unless it is demonstrated that their employer’s interest in a disruption-free workplace outweighs free speech interests. The Court held that employees engaged in the former type of speech may still be afforded protection from retaliation under certain state and federal whistleblower laws.

In a dissenting opinion, Justice David Souter argued that the whistleblower laws provide inadequate protections. Some employment groups have also expressed concern that Garcetti will deter public employees from exposing wrongdoing.

For more information, e-mail Trisha M. Rich at trisha.rich@hklaw.com or call toll free, 1.888.688.8500.

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