Patterico's Pontifications

5/31/2006

Garcetti v. Ceballos

Filed under: General — Patterico @ 6:49 am

The Supreme Court yesterday decided the case of Garcetti v. Ceballos, which addresses the extent of First Amendment protection for speech by government employees.

In a nutshell, Ceballos said that he exposed police dishonesty in a memo to supervisors, and was punished for it. And the Court said by a 5-4 decision that this did not violate the First Amendment.

I disagree.

Details in the extended entry.

(Note: my summary of Ceballos’s allegations does not constitute an opinion as to the true facts. The Supreme Court was required to treat Ceballos’s allegations as true, because this was an appeal from summary judgment, and that’s what you do on summary judgment: assume that all justifiable inferences be drawn in favor of the plaintiff. I know two of the people involved in the case, but I do not express any opinion as to the true facts of the case or any of the people involved, and I will delete any comments that discuss the personalities involved. If you don’t like it, move on to the next post or the next blog. This is a very interesting case on the proper scope of the First Amendment, and I will strictly confine the discussion to that issue alone.)

Ceballos, a prosecutor in the L.A. County D.A.’s office, alleged that he had investigated a defense claim of officer misconduct, and determined that a sheriff’s deputy had lied in a search warrant affidavit. Ceballos wrote a memo to his supervisors setting forth his conclusions and recommending dismissal of the case. They disagreed with his conclusions and said that the defense should proceed with a motion challenging the search warrant affidavit. According to Ceballos, one of his supervisors instructed him to withhold substantial parts of his memo from the defense. Instead, he turned over the memo, redacting only work-product conclusions. Ceballos says that the same supervisor threatened retaliation if Ceballos testified at the hearing on the defense motion that he believed that there were intentional misrepresentations in the affidavit.

Ultimately, a judge found the warrant sufficient regardless of whether the affidavit contained the misrepresentations that Ceballos claimed. Ceballos was subsequently reassigned to lower-level assignments, which he claimed was retaliation for 1) writing the memo, 2) testifying truthfully at the hearing on the defense motion, and 3) discussing the incident in a speech to a local bar association.

The Supreme Court case was only about claim #1. The Ninth Circuit had ruled as to claim #1 that Ceballos’s memo was protected free speech under the First Amendment, and that government retaliation for that speech was actionable under the Constitution and statutes that provide remedies for federal constitutional violations.

The Supreme Court reversed in a 5-4 decision. The majority, composed of conservatives Kennedy, Alito, Thomas, Scalia, and Roberts, sided with the Government, holding that speech by a government employee pursuant to his official duties is not protected by the First Amendment. Since Ceballos’s preparation of the memo in question was indisputably pursuant to his official duties, the Court ruled, he had no First Amendment claim as to retaliation for the memo.

Government employee speech claims are generally evaluated using a balancing test: 1) is the speech a matter of public concern? and 2) does the government have an adequate justification for suppressing it? Past holdings say, for instance, that a teacher can’t be punished for writing a letter to the editor regarding school funding, because it’s a matter of public concern, and the teacher is acting as a citizen.

In Ceballos, the Court created a bright-line rule that says: when the speech is pursuant to an employee’s official duties, the balancing test will always be resolved in favor of the employer.

This has terrible implications for academic freedom, as the dissent observes. Speech within the classroom is almost always pursuant to a teacher’s official duties (though, as we have seen, not always). If a school can punish a teacher for his views, that feels intuitively like a classic First Amendment violation. Rather than explaining why their bright-line rule makes sense even as applied to teachers, the justices in the majority deal with this problem by suggesting that teachers might be different.

Why are teachers different?

Isn’t a prosecutor exposing police misconduct as significant to the public good as a teacher speaking his mind in the classroom?

The opinion has the ironic effect of depriving prosecutors of a First Amendment claim any time that supervisors retaliate against them for exposing police misconduct. Exposing known police misconduct is generally required of prosecutors by Brady v. Maryland, which requires prosecutors to turn over to the defense all exculpatory evidence in the possession of the prosecution or police. Therefore, it is part of their official duties to expose police misconduct — meaning that, when they do so within their office, this is not constitutionally protected speech, and employers can retaliate against them without offending the First Amendment.

I assume that prosecutors will still turn over exculpatory information even though they have no constitutional protection from retaliation from their employers if they do so. It’s still obviously morally wrong to withhold exculpatory evidence. You can lose your bar card and your reputation, and potentially face civil and criminal liability. No prosecutor I know would withhold such evidence because they have lost the potential for a First Amendment claim in federal court if they suffer retaliation.

Still, one could argue the same about teachers. What teacher worth his salt would fail to speak his mind in class just because he doesn’t have a First Amendment claim in federal court if fired?

My guess: such teachers exist. The First Amendment should be there to protect them from having to worry about such issues. And when a prosecutor speaks responsibly and truthfully about police misconduct, the First Amendment should protect him as well.

As Jack Balkin says:

[T]he Court has retreated to a vision of employee speech cases where employees are protected only where they are least likely to be in a position to know what they are talking about . . .

After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures.

That is not good policy or good constitutional law.

I am disappointed in my favorite conservative justices today.

P.S. This blog post was not written pursuant to my official duties as a prosecutor.

39 Responses to “Garcetti v. Ceballos”

  1. It is bad policy, but I like that government employees are now closer to being treated like regular employees.

    Next up: removing the silly notion that government employees have “due process” rights protecting them from arbitrary termination.

    Angry Clam (fa7fff)

  2. Also, perhaps this would be a good time to see if Ceballos could get the California Courts to hold that the California Constitution’s free speech protections are greater than the federal one’s.

    This has happened before in cases involving leaflets and picket signs on (others’) private property.

    Angry Clam (fa7fff)

  3. This has terrible implications for academic freedom, as the dissent observes. Speech within the classroom is almost always pursuant to a teacher’s official duties (though, as we have seen, not always). If a school can punish a teacher for his views, that feels intuitively like a classic First Amendment violation. Rather than explaining why their bright-line rule makes sense even as applied to teachers, the justices in the majority deal with this problem by suggesting that teachers might be different.

    Why are teachers different?

    Because “academic freedom” is a union-negotiated job perk, not a First Amendment doctrine. If any union-busting state were to enact a policy of “academic fascism,” whereby government employed teachers remain free to speak their minds on their own time or to each other on break, but will be terminated immediately if they say anything in class that deviates from the party line, then I’d like to think that any First Amendment challenge would fail by more 5-4 margin in the event the case made it to the Supreme Court at all. Conversely, if a state decided to enact a policy of “prosecutorial freedom,” in which no one can ever get fired for anything, they could do that, too. Neither idea has (or should have, anyway) anything to do with the First Amendment, one way or the other.

    Xrlq (f52b4f)

  4. Should anybody really be protected by the First Amendment from being fired or from having their employer be ticked off at them? Should any employer be forced to retain an employee they would like to fire, even in government?

    While I completely agree that the prosecutor had a duty not to cover up the relevant material, it seems to me that the first concern afterwards should be not how the prosecutor is treated, but an investigation of the higher-ups to see who needs to lose their head for ordering the cover-up. After that it wouldn’t matter if the court’s decision protected the prosecutor from retaliation or not, since those who would retaliate presumably would not be in a position to make his life hell. I.E. you have a perfect right to speak, but not necessarily to escape the consequences of that speech in your workplace.

    Your comments about teachers and academic freedom worry me because in the matter of teachers being free to speak their minds, we must distinguish between private schools and colleges and universities (public or private) vs. standard public schools. A student at the latter cannot necessarily get away from speech that he and/or his parents find objectionable. As such, the school needs to have discretion to listen to the parents and take action if a teacher goes too far (not that they do that much, seemingly, but they need to retain that power). I could do a whole post of my own on the public schools mess, but that’s a nutshell position that is relevant to the issue at hand.

    I read your blog daily; first time commenting. Please keep up the good work.

    Anwyn (01a5cc)

  5. Perhaps I am dense, but I fail to see how this is a Free Speech issue at all. The First Amendment isn’t a free pass to say whatever you want without consequences, or (in this case) to disobey supervisory direction in the performance of job duties. Mr. Ceballos was free to say whatever he chose; he cannot be fined or imprisoned for it.

    I am not suggesting that Ceballos was not correct; it certainly appears that there were ethical issues and that he did the right thing. And he should have legal recourse for reprisals when he followed legal canons and ethical standards.

    But the 1st Amendment argument is (in my view) specious.

    tomjedrz (562284)

  6. Patterico, while I remain a bit less alarmed by this decisions than many others, I would point out that the Majority made clear they were explicitly not intending to address universities and schools, where a long line of case law has carved out a special concern for first Am freedom which there is no reason to think yesterday’s decision undoes:

    Keyishian v. Bd of Regents (1967:

    Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, supra, at 487. The classroom is peculiarly the “marketplace of ideas.” The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, [rather] than through any kind of authoritative selection.” United States v. Associated Press, 52 F. Supp. 362, 372. In Sweezy v. New Hampshire, 354 U.S. 234, 250 , we said:

    “The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

    This special protection was cited by the SCOTUS again in Rust v. Sullivan in 1991

    For example, this Court has recog- nized that the existence of a Government “subsidy,” in the form of Government-owned property, does not justify the re- striction of speech in areas that have “been traditionally open to the public for expressive activity,” United States v. Kokinda, 110 S. Ct. 3115, 3119 (1990); Hague v. CIO, 307 U.S. 496, 515 (1939)(opinion of Roberts, J.), or have been “expressly dedicated to speech activity.” Kokinda, supra, 110 S. Ct., at 3119; Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983). Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our soci- ety that the Government’s ability to control speech within that sphere by means of conditions attached to the expendi- ture of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents, 385 U.S. 589, 603, 605-606 (1967)

    Mona (82a31f)

  7. About teachers and “academic freedom” …

    Feel free to enlighten me, but I fail to see the issue here. If a teacher stands up at a rally outside of school and calls the principal or superintendant a buffoon, that is protected speech. If a teacher stands up in class and calls the principal or superintendant a buffoon, the school can legally impose discipline, assuming no contractual rules stand in the way. How does this ruling change any of that?

    Academic freedom is not a legal or consitutional issue. Xrlq noted that it is in fact a “union-negotiated job perk”. The Foundation for Individual Rights in Education has tons of information, but suffice it to say that academic freedom and free speech in the classroom are not absolute.

    We have all heard lots recently about Intelligent Design, and (to my knowledge) neither academic freedom or the 1st Amendment has been much of an issue.

    tomjedrz (562284)

  8. It is bad policy, but I like that government employees are now closer to being treated like regular employees.

    Because its better that the government be treated as not having to offer first amendment rights like regular employers.

    actus (ebc508)

  9. let me take a moment to clear up your cognitive dissonance.
    most of you call yourselves conservatives, like i do, and are members of the republican party, not like me. most of you ardently supported roberts, alito and the other “conservative” justices when they were nominated, and now you’re surprised and disappointed.
    real conservatives believe in a few simple things:
    maximum personal liberty and minimum government.
    civil rights that inhere in individuals only, not groups or corporations.
    fiscal responsibility.
    environmental stewardship.
    a strong defense, but not attacking innocent countries and justifying this with lies.
    most of all, we uphold the values set forth in the bill of rights. not just some of them, all of them, separation of church and state is just as important as gun ownership.
    now take a look at the president most of you supported in 2000 and 2004. does he espouse these values? is george w. bush really a conservative?
    a stronger, unaccountable executive, informed by christianity and assisting multinational corporations every day isn’t conservatism. it’s corporate christo-fascism. that’s what you get with bush and the republican party, which has tragically lost its way in the last several decades (the democrats tragically lost their way too, but that’s another story). come home to a party which represents conservative values. that party is the libertarian party.
    patterico, your only honorable option after this decision is to resign in protest from the district attorney’s office, hopefully in concert with all 900 of your colleagues. you can make a lot more money on the defense side. if you want to practice your skills in an atmosphere free of dumb rules for their own sake, you can go inactive with the bar and bail out of the justice industry (like i did in 1995). i got to where i couldn’t stand doing it for another minute. as the fire in the garbage can consumed my legal stationery, business cards and checkstock, i danced a jig. the estate of a retired lawyer is equally honorable and a whole lot more fun than that of a practicing lawyer.

    assistant devil's advocate (60175b)

  10. “Because its better that the government be treated as not having to offer first amendment rights like regular employers.”

    It is.

    Angry Clam (fa7fff)

  11. It is.

    Because we want our government to have the same internal tyrannical powers of a corporation. Only, with the power tax and free from market pressure.

    actus (ebc508)

  12. Angry Clam — why is that a good thing? I think the power of employers to discipline or fire employees for speech they engage in outside of the workplace is threatening to our polity, and that’s true whether or not the employers are the government.

    My concern is this: if I can be fired for, say, writing a letter to the editor complaining about the state’s policy on gay marriage, or for going to a gay pride parade, or for running for political office, then my concern for my livelihood is going to act as a restriction on what I am willing to say and what political views I am willing to express. The end of that line is a situation in which only those who are independently wealthy (or those who believe they can find another job if they are fired for expressing themselves, and/or believe themselves to be irreplaceable and therefore at no risk) are able to enjoy the freedom to engage in political activity.

    I don’t see how that is healthy for a democracy or a republic.

    aphrael (e0cdc9)

  13. Aphrael, I’d urge you to read Garcetti v. Ceballos carefully. I don’t think you’ll find anything in that decision to suggest that a government employer could fire you for any of the activities you described. [A private employer couldn’t, either, but as a matter of state law, not the First Amendment.]

    Xrlq (f52b4f)

  14. XRLQ – I’m certain that the decision did not say that I could be fired for the activities I describe, and I did not mean to imply that it did.

    However, I do read — perhaps incorrectly, and if i’m overreaching, then Angry Clam should call me on it — comments #1 and #12 as implying that it would be good if private employers could do such a thing.

    aphrael (e0cdc9)

  15. I think that it is, you’re right, aphrael.

    However, that’s because I very strongly support the idea of at-will employment, and dislike anything that infringes on employers’ rights in that area. (For the record, I don’t like the equivalent restrictions on employees- no-compete clauses and the like)

    I think that it is totally fine, as a moral and political matter, for employees to face dismissal for expressing political viewpoints. Often that ends up working in favor of their viewpoint- consider the woman who was fired in 2004 for her support of John Kerry’s presidential bid. She got far more positive attention for her candidate than merely being allowed to display a bumper sticker would.

    Angry Clam (fa7fff)

  16. Unlike the Clam, I think First Amendment -ish protections for political activities off the job are a reasonable exception to at-will employment. I don’t think that public employees should be more equal than the rest of us, however, so I can’t agree with our host that Garcetti v. Ceballos was incorrectly decided.

    Xrlq (f52b4f)

  17. I don’t believe the First Amendment was intended to prevent an employer from limiting employee speech in the workplace. Normally conservatives are opposed to the Supreme Court inventing constitutional rights. Not every bad thing is unconstitutional.

    James B. Shearer (fc887e)

  18. Los Angeles County District Attorney Steve Cooley said the ruling “strikes the proper balance between employees’ First Amendment rights and the need to promote efficiency in the public workplace.”

    The decision “allows public employers to conduct the people’s business without undue disruption and without turning routine personnel decisions into federal cases,” Cooley said. – (AP)

    steve (f8c5a5)

  19. Given that we agree that prosecutors ought to be allowed to expose police misconduct without suffering punishments from their superiors, Patterico, how does it follow that we ought to ensure this outcome via the First Ammendment?

    Must we twist the Constitution into enforcing every good and prohibiting every evil? Can’t we just pass laws for those things?

    Doc Rampage (47be8d)

  20. What was the judge’s reasoning for upholding the warrant? Kind of a bummer to expose a police lie and have the judge tell you that even if the police did lie he’s upholding the warrant. It only encourages further lying.

    [It’s black-letter law that a warrant will be upheld if there was sufficient probable cause absent any misrepresentations. — P]

    Bob Smith (d57802)

  21. Through channels, always. When the channels fail, resign and expose. If you are tied too close to “That old supper dish,” then shut up and soldier.

    Walter E. Wallis (7ea451)

  22. The memo wasnt exculpatory evidence. It was not evidence of anything, and there was no duty to turn it over. The entire momo was attorney work product. Perhaps the statement of facts might have been dicoverable but even parts of that might have been redactable on other grounds. And, in any event, it is the evidence itself underlying the statement of facts that is discoverable and, if exculpatory, subject to the rule on mandatory disclosure. Conclusion? Much ado about nothing. Why should governemnt employees enjoy a special set of rights that do not accrue to non-govt workers?

    john p. (68764a)

  23. No lawyer has a First Amendment right to continue to work for a client who has lost confidence in him. The lawyer’s view of his ethical obligations whether under Brady, the code of ethics or simply his own conscience is his concern. The client’s view of the strategy and tactics of his case is his concern. When they agree, fine — when they disagree they should part ways. Which is kind of a way of saying that a lawyer is not ever an employee, government or otherwise, regardless of whether he gets a W-2 or 1099. The decision was correct for the wrong reasons.

    nk (b57bfb)

  24. Why are teachers different?

    Isn’t a prosecutor exposing police misconduct as significant to the public good as a teacher speaking his mind in the classroom?

    That was sly Patterico – after pointing out that the SC was asked for a summary judgement on a first amendment issue, you throw in the issue of police misconduct.

    Anyway, I think your characterization of “speech by a government employee pursuant to his official duties” is imprecise, and even a bit misleading. It is not generic speech pursuant to, but speech specifically in the commission of his task as a government employee.

    If you want to draw a parallel to a teacher, a more appropiate comparison would be a teacher giving a test, and having been specifically told not to reveal any information that would give his/her class any advantage, never the less distributes a cheat sheet. Now that teacher may have legitimate concerns with the test, but it is outside his/her job discription, and in fact possibly a firing offense, to unilaterally decide how the test is administered.

    bains (7235b5)

  25. Folks, do me a favor and read the case before commenting. There are a lot of ill-informed comments here that would be more informed if you just read it. The link is right up there in the post.

    Take the previous comment:

    I think your characterization of “speech by a government employee pursuant to his official duties” is imprecise, and even a bit misleading.

    Go complain to Anthony Kennedy, dude, not me. From the first paragraph of the opinion:

    The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.

    It’s more than a bit annoying for someone to tell you that you are being misleading when you properly describe a case, and the critic hasn’t even bothered to read the case, or even its first paragraph.

    Patterico (50c3cd)

  26. Must we twist the Constitution into enforcing every good and prohibiting every evil? Can’t we just pass laws for those things?

    How is it twisting the Constitution to say that the government should not punish a citizen for the viewpoints expressed in his speech?

    The rule announced by the Court, that the First Amendment is abrogated in this context, is a new rule. Arguably, it twists the First Amendment.

    I agree in principle that the Constitution should not be manipulated to create nonexistent rights. Where you and other commenters fail is in explaining how that would be occurring if the dissenters had won the day.

    Patterico (50c3cd)

  27. Xrlq,

    Don’t Mona’s quotes establish that academic freedom is indeed a First Amendment concept (at least in public schools)?

    Patterico (50c3cd)

  28. […] 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. […]

    Patterico’s Pontifications » Garcetti v. Ceballos: Why It’s a First Amendment Case (421107)

  29. That was sly Patterico – after pointing out that the SC was asked for a summary judgement on a first amendment issue, you throw in the issue of police misconduct.

    Nonsense. I didn’t bring up the issue of police misconduct. It is raised by the case itself.

    Which you would know, had you bothered to read it — or even my summary of it!

    Patterico (50c3cd)

  30. You went to some extent pointing out that the SC was only addressing the first amendment issue, and that any police misconduct was outside the realm of inquiry. I just found it interesting that you threw it back into the fray. It struck me as a sly emotional appeal.

    As for not reading the actual opinion – guilty as charged – I read too damn many engineering reports as it is… So it is Kennedy’s language that is “imprecise, and even a bit misleading.” Well, not quite. This is your paraphrase that I truncated: “Kennedy [et al], sided with the Government, holding that speech by a government employee pursuant to his official duties is not protected by the First Amendment.” Looking at the opinion, I see that the actual phrase is “When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment Purposes…” Well now, I see that Kennedy makes the distinction I was also trying to make. I guess I’ll stand by my “imprecise, and even a bit misleading” contention.

    bains (7235b5)

  31. You went to some extent pointing out that the SC was only addressing the first amendment issue, and that any police misconduct was outside the realm of inquiry. I just found it interesting that you threw it back into the fray. It struck me as a sly emotional appeal.

    Not at all. I was saying that the Court had to take as true Ceballos’s allegations that he had attempted to expose police misconduct and was punished for it. I just don’t want to get dragged into a thicket of talking about “what really happened” because I know some of the players involved, and I’m just not going to discuss it. The legal fiction on summary judgment is that the plaintiff is telling the truth. I want to make it clear that I am going with that, simply because it is how the Court had to treat it. And the fact that exposing police misconduct is part of what was allegedly at stake is indeed a critical part of the analysis.

    I have no idea what distinction Kennedy is making with the quoted language that my very accurate paraphrase does not make. I carefully described the facts of the case in my post, and it’s very clear from my post that the memo was prepared pursuant to his duties as an employee, and in the commission of his task as a government employee — phrases that mean the same thing to me.

    I have not said a single solitary damned thing that was misleading, and if you want to say I did, you’ll have to do so in a more articulate manner than you have so far.

    Patterico (50c3cd)

  32. I would point out that the Majority made clear they were explicitly not intending to address universities and schools.

    And I would point out that I said this in my post:

    Rather than explaining why their bright-line rule makes sense even as applied to teachers, the justices in the majority deal with this problem by suggesting that teachers might be different.

    But I thank you for your quotes to case law, Mona, which I think go a long way towards refuting Xrlq’s vision where government can enforce the party line in classrooms, and there is no academic freedom at public institutions of learning. I thought the opinion and dissents had made that pretty clear as well.

    Patterico (50c3cd)

  33. patterico, your only honorable option after this decision is to resign in protest from the district attorney’s office

    Pardon me for thinking that I can continue to serve in my present job with honor — but I do.

    Patterico (50c3cd)

  34. James Shearer, you say:

    Normally conservatives are opposed to the Supreme Court inventing constitutional rights. Not every bad thing is unconstitutional.

    Yes, I am opposed to the Supreme Court inventing constitutional rights. But I don’t think that the right to say things the government doesn’t like without fear of retaliation from the government is an invented right.

    Sure, not every bad thing is unconstitutional. But if read the case (did you?) you know that the critical issue is the second part of the balancing test in Pickering: “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”

    This requires an analysis of policy: the First Amendment policy of a free flow of information weighed against the employer’s need to efficiently provide government services.

    I think that the balance the Court struck here on that issue is a bad one — and under the Court’s precedents, then if I am right, the government’s actions were indeed unconstitutional.

    I think your comment is overly superficial. Read the case if you haven’t already, and make your argument (if you have one) as to why this is a made-up right. But save your empty slogans about making up rights for cases where they apply.

    Patterico (50c3cd)

  35. steve,

    So what?

    Patterico (50c3cd)

  36. Patterico:

    Don’t Mona’s quotes establish that academic freedom is indeed a First Amendment concept (at least in public schools)?

    Not really. Have you read the cases? Keyishian v. Bd of Regents was about a requirement that professors sign a statement attesting to the fact that they are not, and have never been, communists. Flowery “academic freedom equals First Amendment” rhetoric aside, the central holding of this case is consistent with my earlier example of “academic fascism.” I seriously doubt the result would have been the same if the case had involved any professors asserting a First Amendment “right” to teach communism. [Then again, the opinion was written by William Brennan, so who knows. I don’t put it past that guy to constitutionalize every policy preference under the sun, as he implictly does here by blabbering about academic freedom in a case that is really about a teacher’s right to be free outside the workplace.]

    The other case, Rust v. Sullivan, was about government funding of family planning, which does not include abortion. In upholding that restriction, Chief Justice Rehnquist quoted the academic freedom stuff in dicta. He didn’t distinguish Keyishan because he didn’t need to. Here’s the rest of the paragraph Mona quoted from:

    It could be argued by analogy that traditional relationships such as that between doctor and patient should enjoy protection under the First Amendment from government regulation, even when subsidized by the Government. We need not resolve that question here, however, because the Title X pro- gram regulations do not significantly impinge upon the doctor-patient relationship. Nothing in them requires a doctor to represent as his own any opinion that he does not in fact hold. Nor is the doctor-patient relationship established by the Title X program sufficiently all-encompassing so as to justify an expectation on the part of the patient of compre- hensive medical advice. The program does not provide post-conception medical care, and therefore a doctor’s silence with regard to abortion cannot reasonably be thought to mislead a client into thinking that the doctor does not consider abortion an appropriate option for her. The doctor is always free to make clear that advice regarding abortion is simply beyond the scope of the program. In these circumstances, the general rule that the Government may choose not to subsidize speech applies with full force.

    Xrlq (1b3398)

  37. In the alternative, to the extent Keyishan should be read as broadly as Mona’s quote implies, it does go a long way toward answering your earlier question of why teaching is different. Rust takes away from that by hinting that the doctor-patient relationship may be similar, in which case an attorney-client relationship could be, as well. But even that theory doesn’t work with prosecutors, whose client is the government itself. At most, it would apply to public defenders, or other attorneys paid by the government to represent someone else.

    [My client is not the government. I represent the People of the State of California. — Patterico]

    Xrlq (1b3398)

  38. Patterico, the first amendment states:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

    As I said above I don’t think this was intended to prevent the conduct alleged in this case. So I think this is a made up right because it does not in my opinion reasonably derive from the text of the constitution. You appeal to precedents like Pickering, a Marshall opinion from 1968, but this doesn’t show the right was not made up. Are you willing to give equal weight to the abortion precedents? In any case I don’t think this decision is inconsistent with Pickering which mandated a balancing test, you just disagree with the outcome of the balancing test in this case.

    James B. Shearer (fc887e)


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