Patterico's Pontifications

6/2/2006

Examples of Speech by Government Employees: When Is It Protected?

Filed under: General — Patterico @ 6:05 am



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

In this post I set forth various examples of speech by government employees. In each case, you tell me whether the speech should be protected by the First Amendment, and why/why not.

All of the examples are either from actual cases, or the outcome is governed by actual cases. In the extended entry, I will tell you how the Court ruled in those cases.

Try to respond to the situations before looking at the extended entry. Once you have perused the answers, feel free to weigh in with any disagreements over the outcomes, or pose hypotheticals of your own. As always, it’s helpful to read the cases to see the doctrines at play.

I think these cases help show why Ceballos makes little sense. The more context you get for the decision, the worse it looks, in my opinion. Familiarity with the case law should also cut down on the feeling, expressed by numerous commenters, that what Ceballos sought was somehow a “made-up” right, or a twisting of the Constitution.

Here are the examples:

  • Speech at issue: A school principal believes that the way some teachers are dressing indicates support for a bond measure, and circulates a memo setting forth a dress code. An untenured teacher calls a local radio station and conveys the substance of the memo to a disc jockey, who reports it.
  • Speech at issue: A data-entry employee working for a sheriff’s department is at work when she hears that there has been an assassination attempt on the President. A fellow employee remarks that the president has been cutting back on Medicaid and food stamps, and the employee replies: “[Y]eah, welfare and CETA. . . . [S]hoot, if they go for him again, I hope they get him.”
  • Speech at issue: A junior high school English teacher confronts her principal and loudly complains that the school’s employment policies are racially discriminatory in purpose and effect.
  • Speech at issue: A government employee charged with ensuring that the agency’s hiring practices are legal confronts her supervisor and loudly complains that the supervisor is forcing the agency to pursue employment policies that are racially discriminatory in purpose and effect.
  • Speech at issue: A government employee charged with ensuring that the agency’s hiring practices are legal writes a memo to her supervisor expressing concern that the agency is pursuing employment policies that are racially discriminatory in purpose and effect.
  • Speech at issue: The same employee leaks her memo to the local newspaper, which prints it.

    Protected?

    After the article runs, can the agency fire her for the memo?

  • Speech at issue: A professor at a state college leaves his teaching duties on occasion to testify before committees of the state legislature, and becomes involved in public controversies with the college Board of Regents over whether the college should become a four-year school.
  • Speech at issue: An Assistant District Attorney in New Orleans is transferred within the office. She circulates a questionnaire asking certain questions of colleagues, including whether they feel pressured to work on political campaigns.
  • Speech at issue: A teacher writes a letter to the editor of a newspaper, criticizing the school board’s use of school funds, and the school board’s and superintendent’s failure to inform taxpayers why new funds are necessary.

Here are the answers:

  • Speech at issue: A school principal believes that the way some teachers are dressing indicates support for a bond measure, and circulates a memo setting forth a dress code. An untenured teacher calls a local radio station and conveys the substance of the memo to a disc jockey, who reports it.

    Answer: Protected speech. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977).

  • Speech at issue: A data-entry employee working for a sheriff’s department is at work when she hears that there has been an assassination attempt on the President. A fellow employee remarks that the president has been cutting back on Medicaid and food stamps, and the employee replies: “[Y]eah, welfare and CETA. . . . [S]hoot, if they go for him again, I hope they get him.”

    Answer: Protected speech. Rankin v. McPherson, 483 U.S. 378 (1987).

  • Speech at issue: A government employee charged with ensuring that the agency’s hiring practices are legal confronts her supervisor and loudly complains that the supervisor is forcing the agency to pursue employment policies that are racially discriminatory in purpose and effect.

    Answer: Unprotected speech under Ceballos. The speech is pursuant to official duties of the employee.

  • Speech at issue: A government employee charged with ensuring that the agency’s hiring practices are legal writes a memo to her supervisor expressing concern that the agency is pursuing employment policies that are racially discriminatory in purpose and effect.

    Answer: Unprotected speech under Ceballos, for the same reason.

  • Speech at issue: The same employee leaks her memo to the local newspaper, which prints it.

    Answer: Potentially protected speech — but (depending on the agency’s motivations) the agency may still be able to fire her for the memo. This is true even if the newspaper article was a substantial factor in the firing — as long as it was not dispositive. If the agency can prove that the employee would have been fired anyway, simply for writing the memo — say, for example, the agency has a memo showing that the decision to fire her was made before the newspaper article was published — the agency wins. Since the agency would have fired the employee anyway, the firing is legal under the Mt. Healthy case cited above.

  • Speech at issue: A professor at a state college leaves his teaching duties on occasion to testify before committees of the state legislature, and becomes involved in public controversies with the college Board of Regents over whether the college should become a four-year school.

    Answer: Protected speech. Perry v. Sindermann, 408 U.S. 593 (1972).

  • Speech at issue: An Assistant District Attorney in New Orleans is transferred within the office. She circulates a questionnaire asking certain questions of colleagues, including whether they feel pressured to work on political campaigns.

    Answer: It depends on the facts. The speech touches on matters of public concern, but in the particular case, other factors supported the conclusion that the circulation of the questionnaire was intended as part of an employee grievance, and was not protected. Connick v. Myers, 461 U.S. 138 (1983).

  • Speech at issue: A teacher writes a letter to the editor of a newspaper, criticizing the school board’s use of school funds, and the school board’s and superintendent’s failure to inform taxpayers why new funds are necessary.

    Answer: Protected. Pickering v. Board of Education, 391 U.S. 563 (1968).

In general, I think the courts have done pretty well applying balancing tests. Some of the cases err heavily on the side of free speech — in particular Rankin, the one involving the data-entry employee. I think there is a much better argument for allowing discipline in that case than in Ceballos. The data-entry person comes close to endorsing assassination, a serious crime. The speech in Ceballos, by contrast, was certainly a matter of public concern. The fact that Ceballos (assuming his allegations are true) had a duty to disclose it in the course of his official duties should not subject him to retaliation for doing so.

13 Responses to “Examples of Speech by Government Employees: When Is It Protected?”

  1. I don’t think it makes much sense to compare the merits of discipline in Rankin vs. Ceballos. We’re talking about two sharply-divided rulings by two very different courts. Both times, all the liberal Justices (including Stevens, J.) ruled that the speech in question was protected, and both times all the conservatives (including Scalia, J.) held it was not. We just had a more liberal court back then.

    Xrlq (f52b4f)

  2. The 1st Amendment should not completely shield a government employee in situations when they behave unprofessionally, violate non-trivial workplace protocols, or do their job badly. For example, the government employee who “loudly complains” (i.e. berates) another employee is disrupting the workplace and should be subject to discipline.

    In the example of the memo, if writing the memo is part of one’s duties the 1st Amendment doesn’t apply, but other laws/rules about employee discipline DO apply. If the memo is incorrect or poorly written, the 1st Amendment doesn’t protect the employee from consequences for doing a poor job. As to leaking it, unless the memo is clearly confidential, the leak is protected.

    Essentially, the 1st Amendment should not be a shield from employment discipline when the speech violates employment rules, unless specifically protected by statute or there is compelling public interest.

    There is no compelling public interest in Ceballos. The facts were known to all concerned; the only thing Ceballos revealed was his conclusion.

    tomjedrz (562284)

  3. I don’t think any of the above cases should be protected by the First Amendment (as regards being fired or otherwise disciplined at work) and that the cases held which held otherwise were all relying on a right not in the Constitution. I note the oldest case is from 1968, how would they have been decided in 1900?

    You could give a similar list of cases about abortion rights. Does that mean that the right to abortion was not made up? It is easy to oppose the court inventing rights which you oppose, it is harder to oppose the invention of rights you support.

    James B. Shearer (fc887e)

  4. Mt. Healthy was a unanimous opinion written by Chief Justice Rehnquist. Same goes for Givhan. Both are from the late 70s.

    I am interested to know exactly what the basis of your opposition is. Let me ask a few questions:

    1) Do you think that members of the executive branch may punish citizens for their political speech? For example, if James Shearer criticizes the president’s immigration policy in a letter to the editor, can the President have the IRS audit James Shearer?

    You could, of course, make this argument, by saying that the First Amendment says “Congress shall pass no law . . .” and thus doesn’t apply to actions by the executive. You’d be wrong — but you could make the argument.

    2) Same hypo, but now you’re a secretary in the State Department.

    3) Same hypo, but now you’re an INS (now called “ICE”) agent.

    4) Same hypo, but now you’re an IRS employee.

    5) Same as #3, but your criticism comes in casual conversation with another ICE agent.

    6) Same as #5, but your criticism is in a memo to your supervisor.

    I just want to know how far your opposition to free speech rights goes.

    Patterico (50c3cd)

  5. tomjedrz says:

    There is no compelling public interest in Ceballos. The facts were known to all concerned; the only thing Ceballos revealed was his conclusion.

    Exactly wrong. He redacted his conclusions, and turned over the portion of the memo with the exculpatory information.

    Now that you don’t completely misunderstand what he did, to the point where you have it totally backwards, do you now support free speech protections for his actions?

    Patterico (50c3cd)

  6. Patterico, this is basically a question about whether the President can order the IRS to audit somebody. This may be prevented by statue but I don’t immediately see a constitutional problem.

    James B. Shearer (fc887e)

  7. James, you can substitute any punitive action you like.

    Do I read your answer as claiming that you believe that the President may lawfully take a punitive action against a citizen for his speech without violating the First Amendment, because he is not the Congress?

    You don’t see a constitutional problem with *any* of the examples???

    Why not?

    Patterico (50c3cd)

  8. Patterico, suppose I write a letter to the editor saying I am refusing to pay income tax to protest the idiotic war in Iraq. Are you saying it is unconstitutional for me to be audited as a result? I am not sure what principle is being invoked here, the government selectively investigates and prosecutes people, like Al Capone, all the time. Of course there is the “equal protection” clause which might apply if the government tried to take action as a result of the audit but (putting aside the fact it only applies to the federal government by a somewhat dubious reverse incorporation argument) I think selective prosecution arguments are generally unsuccessful.

    James B. Shearer (fc887e)

  9. The facts in the cases in which the Court held the communication to be protected under the First Amendment for the most part seem less compelling — and less worthy of protection — than the facts in which the communications are not protected because of Garcetti v. Ceballos. I don’t understand what it is about disclosing wrongdoing in the course of one’s duties that makes it less worthy of First Amendment protection than when the disclosure is made outside of workplace channels. But the Court of Appeals for the Federal Circuit made roughly the same distinction in Huffman v. Office of Personnel Management, 263 F3d 1341 (Fed. Cir. 2001), in deciding when a disclosure of wrongdoing is protected under the Whistleblower Protection Act, which applies to most federal employees. The Federal Circuit distinguished 3 different situations. First, when the employee has, as part of his normal duties, been assigned the task of investigating and reporting wrongdoing by government employees and in fact reports that wrongdoing through normal channels, the court held that the disclosure is not protected. Second, when an employee with such assigned investigatory responsibilities reports the wrongdoing outside of normal channels, the disclosure is protected. Third, when an employee is obligated to report the wrongdoing, but such a report is not part of the employee’s normal duties or has not been assigned those duties, the Court failed to give a clear answer, stating that the disclosure “may” be protected, but it did not specify when it would be protected, and when it would not be protected. From what I have read about Ceballos, his disclosure likely falls under the third, ambiguous area.

    Tim K (4c4927)

  10. >

    From your initial post, Caballos was directed what to disclose, and exceeded that, substituting his judgment for his superiors. Perhaps THAT was what got him reassigned.

    >

    I didn’t have it totally backwards. And I do not support free speech protections for his actions. He shouldn’t be prosecuted, but he also shouldn’t be immunized from employment-related consequences.

    >

    The government may not invoke it’s police powers to silence speech. In your example, sending the IRS after someone who voices opposing views publicly is prohibited, and IMHO grounds for impeachment if authorized by the President.

    But, what if the citizen is an employee of the Executive Branch? Certainly, any secrecy laws can be enforced, and the employee can be disciplined for any disclosure policies violated. Further, if the letter reflects badly on the citizen’s judgment or competance, the employer should be able to consider it when evaluating the citizen.

    The key issue here is how closely the speech relates to the citizen’s job function or position, whether it is in some capacity official, and whether any other rules or laws were violated. An IRS agent writing a letter to the editor about immigration policy should be protected.

    The line drawn regarding speech pursuant to the job function makes perfect sense to me. Internal communication is inherently private, and so the 1st Amendment does not apply. The author of internal communication can leak it publicly, and the 1st Amendment could prevent prosecution (if other laws aren’t broken), but job-related consequences are still on the table.

    tomjedrz (c722f0)

  11. From your initial post, Caballos was directed what to disclose, and exceeded that, substituting his judgment for his superiors. Perhaps THAT was what got him reassigned.

    I don’t know that this is true.

    I didn’t have it totally backwards. And I do not support free speech protections for his actions. He shouldn’t be prosecuted, but he also shouldn’t be immunized from employment-related consequences.

    Well, I am glad that you don’t want a prosecutor prosecuted for (allegedly) disclosing exculpatory evidence. That’s a relief.

    I think you did get it backwards. You said he disclosed only his conclusions. Actually, he redacted his conclusions and disclosed everything else.

    Patterico (50c3cd)

  12. […] All I am saying, and all Ceballos’s lawyer argued, is that there are rare situations where on-the-job speech can be covered by the First Amendment. The precedents bear this out; I have discussed the Court’s previous cases in this post. In the Givhan case, a teacher complained to her principal about the school’s hiring practices, and this was protected. The only reason this case is different is because the teacher in Givhan wasn’t charged with ensuring racial diversity at her school — a duty that probably would have given her greater insight into the problem, making her speech even more valuable to the public. […]

    Patterico’s Pontifications » Oral Argument Transcripts in Garcetti v. Ceballos (421107)


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