WSJ Editors Screw Up Analysis of Garcetti v. Ceballos
The Wall Street Journal today has a factually challenged editorial on Garcetti v. Ceballos:
If you think government isn’t accountable to elected officials now, thank five Supreme Court justices last week for not making it far worse. A 5-4 majority stopped an attempt to give on-the-job First Amendment protection to government workers who disagree with official policy.
In Garcetti v. Ceballos, a lawyer in the Los Angeles District Attorney’s office claimed to have had his free-speech rights violated because he wrote a memo disagreeing with an office decision and was punished for it. The ever-creative Ninth Circuit Court of Appeals agreed, thus turning the First Amendment into a weapon for every unhappy government worker to say what he pleases whenever he pleases.
The editors’ description of Ceballos’s memo is wrong. Ceballos’s memo did not disagree with an office decision or policy. It simply laid out his analysis of whether police officers had lied. The disagreement came after the memo was written — when his supervisors didn’t like what was in the memo, and allegedly tried to punish him for the memo’s content.
The error colors the editors’ conclusion:
None of this means government workers can’t speak out freely in their private capacities, as earlier Supreme Court rulings have underscored. But they owe some allegiance to employers in their official duties. And if employees really can’t abide the policies they signed up to implement, they can always do the honorable thing and quit.
But, if you believe Ceballos, all he was doing in the memo was turning over exculpatory information to the defense, as required by the Constitution. And that is indeed a major part of what he “signed up” to do. But the editors don’t understand this — because they think the memo, rather than fulfilling a constitutional obligation, merely expressed Ceballos’s disagreement with an office decision.
This is such a fundamental error that it tells me that the editors cannot possibly have read the decision. And I have no respect for editorial writers at major newspapers who write editorials about court decisions without reading them. It’s not like writing an editorial is such a tough job to begin with. If hundreds of thousands of people are going to read what you say, you owe it to them to know what you’re talking about — or at least to try.
I am going to write the Wall Street Journal and demand a correction. I don’t hold out any hope that I’ll get one, but I’m going to try.
The WSJ editorial is a bit off the mark, but not wildly so. The memo contained allegations of wrongdoing, rather than a disagreement with office policy. But two things can be said in defense of the WSJ.
First, if Ceballos was fired in retaliation for the Memo, then the people who fired him must have thought he violated SOME standards or policies about good memo-writing (e.g. either a sensible policy to look at facts with a cool head instead of being inflammatory, or an assinine policy to cover up police wrongdoing).
Second, the Ninth Circuit’s rationale COULD be applied to any future workplace speech that merely expresses a simple, straightforward disagreement with office policy.
Andrew (976ffa) — 6/4/2006 @ 11:20 amCeballos wasn’t fired.
Patterico (50c3cd) — 6/4/2006 @ 11:36 amRemoved from his former position.
Andrew (a112cd) — 6/4/2006 @ 12:54 pmThanks for the review of that editorial. I had a post set up for tomorrow about it, and deleted it based on what you pointed out.
I don’t anticipate you’ll even get a response, let alone a correction. The WSJ gets a lot of things right, but when they’re wrong they stck to their guns regardless of the facts. Look at their consistent madness on open borders.
Tom Blumer (f17481) — 6/4/2006 @ 9:22 pmI’m tired and grumpy, sitting in a Starbucks not too far from where I’m doing the JAG thing, but I’m compelled to comment because, well, it beats sitting in the BOQ without internet access.
Unlike you, Patterico, I think the Court reached the right result, but for the wrong reasons.
A quick caveat: although I read the decision, I did not bother to read the dissent — I’ve neither the patience nor the desire to subject myself to Stevens tonight.
I too am a prosecutor, and have found myself involved in similar discussions regarding the merits of a case in both a pre-filing and post-filing posture. Such discussions often get quite heated — I’ve been known to engage in eye rolling, derisive snorting, and in a particularly Soviet moment, I think I even pounded on the table with a wingtip.
I can foresee occasions where the quality of the argument, analysis and presentation might lead supervisors to question the judgement of the DA involved. Given enough evidence of poor case analysis, some supervisors might justify reassignment.
But I’ve never taken my internal office discussions or doubts about a case public, haven’t shared them with the defense, ’cause they’re my opinions, not facts.
It sounds like Ceballos produced an internal memorandum for his bosses, i.e., workproduct, expressing his opinion. He then testified about the contents of the memo, providing multiple reasons to doubt his judgement, fitness and suitability for a supervisory gig.
Correct me if I’m wrong, but the defense was in possession of the same facts as Ceballos; he brought nothing to the party, other than his position as a DA, to lend weight to the defense’s argument in favor of traversing the warrant.
If there’s an obligation under Brady to reveal one’s doubts about a case, I’m afraid I just don’t see it.
Mike Lief (cbfcfc) — 6/4/2006 @ 9:51 pmIt’s kind of a good point you make. But defense attorneys and defense witnesses say things all the time. It’s different when you go out and see yourself that they’re telling the truth — on something significant.
I’m not saying that happened here. For all I know, there were two ways to look at it, and his way was the wrong way.
I don’t know the answer.
Patterico (50c3cd) — 6/4/2006 @ 10:41 pmthe interesting thing is that two ostensibly very different newspapers, the lat and the wsj, got it wrong, along with the court. i don’t recognize either paper as a conservative, liberty-oriented voice. the wsj is a corporate mouthpiece and the lat is a liberal mouthpiece. this is the problem with consolidating big-money journalism, which bloggers are here to remedy.
assistant devil's advocate (3747e3) — 6/5/2006 @ 9:38 am