Patterico's Pontifications


Garcetti v. Ceballos: Why It’s a First Amendment Case

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 10:36 pm

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.

5 Responses to “Garcetti v. Ceballos: Why It’s a First Amendment Case”

  1. Patterico, I hope you don’t feel ganged-up on. I think I speak for most of your critics when I say we still love you even though you are expressing a ridiculous opinion here :-).

    Actually, the opinion isn’t ridiculous, but I do think that you are downplaying the downside to your preferred rule. Exposing police misconduct is a pretty black-and-white case, but if you are going to provide Constitutional protection to this case, what about less clear-cut cases? Do you want every case of a prosecutor defying his bosses over how he writes a memo to end up before the federal courts to decide if _this_ incident was really a matter of free speech or not?

    How is any government manager going to control what goes on in his office if he can’t even control what memos people write or what they put in the memos? The Supremes would have been abrogating their duties if they let the specific nature of this case influence the general rule that they applied.

    The whole idea of applying First Ammendment protections to the government’s treatment of employees in the course of their job is risky. The Bill of Rights is intended to give people freedom, but when you agree to become an employee of any organization, you have to subjugate your freedom as long as you want to be employed. The Constitution says that the government can’t deprive anyone of their liberty without due process. Does that mean that if the government fires someone for not showing up for work, they have violated the constitution? After all, forcing someone to be at a particular place at a particular time, doing a particular thing sounds a lot like depriving someone of their liberty.

    Doc Rampage (f06a6e)

  2. 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.

    That, plus the right to collect a paycheck from the government, which the rest of us only have a right to pay money to. The rest of us have no analogous rights as against our private employers.

    Xrlq (1b3398)

  3. […] P.S. My previous posts on this case are here and here. […]

    Patterico’s Pontifications » More on Garcetti v. Ceballos (421107)

  4. 1: Not everything has to be a Federal Case. There’s these wonderful things called elections, wher ethe People can go after public officials who screw up, or srew around.

    2: “Whistleblower” only seems to be a defense for lefties attacking Republicans. Pardom me if I yaw when it becomes harder, therefore, to become one.

    Greg D (4b81fa)

  5. […] (This is a follow-up to my previous posts on the case of Garcetti v. Ceballos, which I discussed here, here, and here.) […]

    Patterico’s Pontifications » Examples of Speech by Government Employees: When Is It Protected? (421107)

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