More on Garcetti v. Ceballos
In discussing Garcetti v. Ceballos, Jack Balkin makes an important point. With the holding of this case, it is now the law that
if [public employees] speak both privately and publicly, they can be fired for their private speech.
In my opinion, this is the main problem with Garcetti v. Ceballos: it allows government retribution for employee speech regarding matters of significant public concern, as long as that speech begins internally, pursuant to official duties. This is true even if the employee ends up going public with his speech because his efforts to resolve the matter internally did not work.
Imagine a responsible whistleblower. It’s not so hard to do. Let’s say we have a federal air marshal who believes that it’s ridiculous that the government makes him wear a suit and tie while performing his duties on a commercial jet. The air marshal knows that wearing such clothing readily identifies him as an air marshal, making him a target for terrorists.
He expresses his concerns in a memo to his superiors. They don’t like his questioning their policies, so they demote him. Then he goes to the press, complaining that red tape and bureaucratic attitudes are tying our hands in the fight against terrorism.
Don’t we want him to try to resolve this matter internally before going to the newspapers? If he is responsibly reporting a serious concern with government, based on his knowledge of government’s inner workings, do we want to allow him to be punished because he tried to resolve the matter internally first?
Yet if his employer can argue that his internal expression of concern was in any way pursuant to his official duties, and that he was punished for that internal speech, then the government is off the hook as far as the First Amendment goes. Lawyers could argue that the air marshal has a duty to ensure safety in the skies. Perversely, precisely because he has that duty, writing memos to promote greater safety in the skies is an act done pursuant to his official duties — making him subject to retaliation.
So the government is allowed to punish the guy for the content of his speech, regarding a matter of vital public concern — and the First Amendment has nothing to do with it.
Ironically, if he had simply gone straight to the press, bypassing all internal efforts to resolve the situation, he would have at least a potential First Amendment claim, subject to a traditional balancing test that would, in my judgment, probably favor his case. But by acting like a responsible employee, and trying to handle the matter “in-house,” he forfeits any constitutional protection against governmental retaliation based on the content of his speech.
I think this decision will gravely inhibit government employees from reporting problems with government. I think it is rare that a responsible public employee will go straight to the press when confronted with misconduct or other serious concerns with the inner workings of government. In the real world, when a responsible government employee has important information about misconduct at a governmental agency, he is not going to go straight to the newspaper. He is going to try to resolve the problem internally, as Ceballos did.
Often (perhaps usually), the employee’s attempt to do so will be within his job description, as Ceballos’s memo undoubtedly was.
But if his employer resists the efforts to deal with the problem, and, worse, retaliates against the employee based on the content of his speech, then the employee may choose to go public with the information. If the information is of significant public concern, and the employee is speaking the truth, then his public statements would be classic First Amendment speech — the type of speech that we all want to encourage.
Yet, if the employer doesn’t like the employee’s speech, and the employee ever spoke “privately” (i.e. pursuant to his official duties), then the employer can retaliate against the employee when he goes public, by pointing to the “private” job-related speech as the reason for the retaliation. Thus, the government can punish the employee for his speech, as long as it makes clear that it is punishing the employee only for his internal job-related speech.
Granted, if the employee can make the case that the employer is retaliating only for the public speech, he may still have a case. [See UPDATE below for the precise standard.] But, in the real world, the employer is generally not going to be retaliating only for the employee’s public speech. If a government employee (like our air marshal above) starts sounding the alarm about problems at his or related agencies, his employer will probably be 1) genuinely irritated at the employee for his internal speech, and 2) even more irritated at the employee for going public. The government employer will thus usually be able to make the case that they were upset at the employee’s internally expressed grievances. And he will be constitutionally out of luck.
This, to me, is not an intuitively appealing rule. The First Amendment is primarily designed to allow citizens to speak freely about matters of public concern. The workings of government are among the top issues of concern to citizens, and nobody has better knowledge of these workings than government employees.
Yet the Court has created a rule that, in most cases, fails to protect such employees from adverse treatment by the government, based upon the views he has expressed.
That sounds like a First Amendment problem to me. Doesn’t it to you?
P.S. My previous posts on this case are here and here.
P.P.S. The L.A. Times has an interview with Ceballos today, here.
UPDATE: The precise way to articulate what must be shown is this: the employee must first show that the public speech was a motivating factor — but still loses if the employer can show that it would have discharged him for the private speech anyway. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977).
Who says “only?” As long as the public, First Amendment-protected speech played a role in the termination/discipline/etc., the aggrieved employee has a case, and Ceballos does not apply. If an employee first raised his concerns internally, and later made them public, the logical inference is that any subsequent discipline would be in retaliation for the latter, not the former (or possibly, for both). I can’t think of any employer who would rather have his employees air their dirty laundry publicly than have them investigated quietly through the appropriate internal channels. Can you? If not, how on earth is an employer going to persuade a jury otherwise?
[By disciplining employees promptly when they raise embarrassing matters of public concern, for one. If employers can provide undisputed evidence that the employee would have been disciplined anyway, for internal speech, a jury will never hear the claim. This will encourage swifter punishment for interal and embarrassing speech on matters of public concern. — P]
Xrlq (f52b4f) — 6/1/2006 @ 7:27 amPatterico,
I agree with your analysis wholeheartedly. The Court has denied First Amendment protection to a public employee based on the content of his communication on a matter that is of vital public interest. Your example of the Federal Air Marshal may be more apt than you know. For most federal employees, disclosing wrongdoing within the federal government is protected by the Whistleblower Protection Act, which is codified in scattered sections of Title 5, U.S. Code, but the primary provision is 5 U.S.C. 2302(b)(8), which makes it a prohibited personnel action to take or threaten to take a personnel action against an employee in retaliation for a disclosure of information which the employee reasonably believes evidences a violation of law, rule, or regulation, gross mismanagemement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to the public safety.
While there is no doubt as to the coverage of this statute to most federal employees, there may be doubt as to Federal Air Marshals, who are members of the Transportation Security Administration (TSA). Under the Aviation & Transportation Security Act of 2001, Pub. L. No. 107-71, there are a number of questions and issues concerning the degree to which TSA employees come within the jurisdiction of the Merit Systems Protection Board (the successor to the Civil Service Commission), which adjudicates claims of retaliation for whistleblowing by federal employees. See, e.g., Lara v. Department of Homeland Security, 2006 MSPB 31 (Feb. 28, 2006). To my knowledge, the MSPB has never ruled on whether Federal Air Marshals have full coverage under the Whistleblower Protection Act, but I think there’s a real question about it.
Tim K (7e41e8) — 6/1/2006 @ 9:51 amIsn’t the proper response however, NOT to broadly interpret the first amendment and screw up constitutional law even more with hard to justify claims, BUT instead to pass a law which protects governmental whistleblowers against retaliation for internal speech?
That way, doesn’t everyone walk away happy? Constitution and employees, I should hope that a majority of congresspeople would support government employees who address issues, instead of getting a govt of yes-men. But if they don’t isn’t the correct response to vote those folks out of office? Not to read preferences into the constitution?
This also allows states or counties to create their own whistleblower policies.
Joel B. (8f121b) — 6/1/2006 @ 10:36 amPatterico (answering my question as to how an employer would prove an employee was disciplined for private speech instead of public):
No it won’t. If an employer were dumb enough to adopt a policy like that, the end result would be poor communication between him and his employees. Rather than quietly identifying problems to him, they’d bypass the internal channels and take every grievance to the press. That, in turn, would result in countless unnecessary embarassment to the agency, with no repercussions for the employee. That’s a crappy management problem, not a First Amendment one.
Xrlq (f52b4f) — 6/1/2006 @ 11:27 amThat’s because when he’s working in his official capacity, he does not have all the rights of a private citizen. This is emphasized to all federal employees when they are hired and when they are advised about discussing issues with the press. The concern is that a federal employee can be (wrongly) considered to be acting as an agent for the federal government when they do so.
He must have had some alternate courses of action regarding both his concerns (assuming they were valid) and his adverse consequences (demotion). They are two different activities – one is “whistleblowing” and the other is the employee grievance process.
This is also why most members of federal law enforcement agencies, the military, and the intelligence community don’t speak out until they are retired. They are then no longer at risk of being misconstrued as a spokesman for their former employer.
Steve G. (feb53c) — 6/1/2006 @ 2:59 pmWho says “only?” As long as the public, First Amendment-protected speech played a role in the termination/discipline/etc., the aggrieved employee has a case, and Ceballos does not apply.
Not quite. It has to have been the decisive factor, not just a factor. I said:
More precisely, the employee must first show that the public speech was a motivating factor — but still loses if the employer can show that it would have discharged him for the private speech anyway.
I’ll update the post to reflect this.
Patterico (50c3cd) — 6/1/2006 @ 8:42 pmNo it won’t. If an employer were dumb enough to adopt a policy like that, the end result would be poor communication between him and his employees. Rather than quietly identifying problems to him, they’d bypass the internal channels and take every grievance to the press. That, in turn, would result in countless unnecessary embarassment to the agency, with no repercussions for the employee. That’s a crappy management problem, not a First Amendment one.
I think you have an unrealistic view of how these situations work.
First, no agency will have a consistent policy of ignoring complaints, so that employees will know to go straight to the press. Different supervisors are different. Plus, you might have a low opinion of a supervisor, but still go to them with your problem, hoping they will do the right thing — or if not, that their boss will.
Second, it will almost never happen that an employee goes to the press to dish dirt on problems with his agency, and suffer “no repercussions.” Maybe your point is that, if he suffers repercussions, he can file a lawsuit and win. Maybe, but that’s usually small consolation. Plus, there are repercussions and then there are repercussions. Some are easier to prove than others.
Patterico (50c3cd) — 6/1/2006 @ 8:49 pmthis is most definitely a first amendment issue.
assistant devil's advocate (71f401) — 6/1/2006 @ 10:26 pma prosecutor, like any other lawyer, is an officer of the court.
officers of the court have responsibilities to present facts and law accurately. they have a lot of spin leeway, but they are bound not to outright lie. a responsible, accountable advocate will assess the credibility of his/her witnesses before putting them on, and will decline to put on witnesses of objectively dubious credibility, not just for the ethical values at stake but the tactical values too.
if a junior prosecutor can be disciplined by his/her superiors for performing this perfectly natural function, he/she is no longer an officer of the court vested with his/her vital discretionary role in seeking justice.
he/she is just a fascist tool now.
if a junior prosecutor can be disciplined by his/her superiors for performing this perfectly natural function, he/she is no longer an officer of the court vested with his/her vital discretionary role in seeking justice.
he/she is just a fascist tool now.
If he/she goes along with it.
Patterico (50c3cd) — 6/1/2006 @ 10:31 pm