In my post on Garcetti v. Ceballos, a lot of commenters are wondering why this is a First Amendment issue at all. I am wondering why this is so difficult to understand.
Put simply, Ceballos alleges that officials of the government punished him for expressing a particular viewpoint regarding a matter of significant public concern.
Read that sentence. How is that not a claim that raises at least potential First Amendment issues?
Xrlq complains that public employees should not have greater rights than private employees. We don’t. We all have the same right: not to have the government treat us badly based on the viewpoints we express.
Indeed, government employees enjoy this right to a lesser extent, because it’s easier for the government to punish us for the content of our speech when it employs us. Case law does indicate that the state has a freer hand to restrict speech when it acts as an employer. But this ability to restrict its employees’ speech is not unlimited. As Marty Lederman explains:
The state has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the state employer’s operations.
Lederman points to the case of Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), which was not overruled by Ceballos. Givhan
provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices.
What Ceballos did was give unlimited discretion to the state to retaliate against employee speech that is made pursuant to the employee’s official duties — as opposed to the speech in Givhan, which was related to the employee’s job, but still protected.
As Lederman sums it up:
So, it appears that if one’s duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick [balancing test] analysis still applies.
You might agree with this rule, but it’s a new rule, and not one obviously mandated by historical First Amendment precedent.