Public Employees’ Free Speech Rights Diminished by U.S. Supreme Court

The Supreme Court has diminished the free speech rights of public employees nationwide in its decision, Garcetti v. Ceballos, 126 S. Ct. 1951, decided 5/30/06. In this case, Ceballos was a deputy district attorney in Los Angeles County, California, assigned to a position called the calendar deputy in the Pomona branch office. Part of the duties of this job involved dealing with defense attorneys complaining about police or prosecutorial improprieties. In one case, Ceballos was contacted about improper police allegations in a request for a search warrant. Ceballos wrote a memo to his superiors stating that serious misrepresentations were made by the police. A meeting was held between all involved parties and the meeting became contentious. Later, the defense in the case moved to suppress evidence based on the inaccuracies in the affidavit used to secure the search warrant from a judge, and Ceballos was subpoenaed to testify by the defense. After all that, the trial judge upheld the warrant and allowed the admission of evidence.

Ceballos returned to work but was transferred to a trial position in another courthouse and denied a promotion. Ceballos then sued in federal court, claiming illegal retaliation for the exercise of his constitutional right to free speech. The federal district court dismissed his case, but the Ninth Circuit overruled, finding Ceballos was engaged in protected free speech.

Justice Kennedy, writing for the Court in a 5-4 decision, overruled the Ninth Circuit. The reason stated was that Ceballos was engaged in expressions made pursuant to his job duties as a calendar deputy. An examination of the entire rationale shows that this decision is a significant restriction on public employees speech rights, and going forward, all public employees should exercise caution in speaking about job related issues.

Judge Kennedy wrote “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes. . .” Garcetti at 1960. Kennedy noted that if “Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.” Garcetti at 1960-61. Despite this holding, the Court noted that the First Amendment protects expressions related to the speaker’s jobs and noted that the public should not lose the expertise public employees have on issues of public concern. The Court distinguished the Pickering case, previously the key case on this issue, finding that there the teacher had written a letter to the editor.

This distinction is unsatisfactory though. What if Ceballos had written a letter to the editor about his perceived misconduct? Unfortunately, the Garcetti decision muddles rather than clarifies this area of constitutional scrutiny. The practical bottom line is that public employees who want to keep their jobs should assume that they have less rights in the area of free speech than they may have supposed. This decision will have a chilling effect, and will diminish the willingness of public employees speaking out on public issues, probably to the detriment of the public discussion.

The lower courts have already tightened the free speech parameters of public employees. This is by dismissing cases challenging employment actions against free speaking employees. A good example occurred in Williams v. Riley, 481 F. Supp. 2d 582, decided March 9, 2007. There police officers submitted an internal report reporting the beating of a restrained prisoner by co-workers. Following an adverse employment action, the officers sued. The federal trial judge refused to dismiss the case on free speech grounds. Following the Garcetti decision, the employer renewed it’s dismissal motion which the “gravely troubled” court now granted noting Garcetti “allows no federal constitutional recourse for an employee of the State of Mississippi who is fired for reporting a fellow government employee’s misconduct.” Williams at 584. The lesson for a public employee? Speak at your own possible peril.