Patterico's Pontifications

6/5/2006

Oral Argument Transcripts in Garcetti v. Ceballos

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 6:03 am



Those who are interested in the Garcetti v. Ceballos case that we have been discussing here for a few days might want to take a look at the oral argument transcripts. The case was first argued before a Court that included Justice O’Connor (transcript here), and was reargued after she retired, to a Court including Justice Alito (transcript here).

In the extended entry I set forth some highlights of the transcripts, and discuss their meaning. It’s a way to explore the various arguments in an intellectually challenging way.

Warning: as regular readers are starting to realize, this whole issue is intricate and legal to begin with. And this post (especially) is really for the legal geeks — the people who have read the Ceballos case, understand what the “Pickering balancing test” is, and have the patience and interest to discuss the intricacies of the doctrines at issue.

It’s quite a bit like law school: spirited and philosophical debate on what the law should be, rather than pedantic lecturing on what the law is. I find this issue especially fun because, for once, I’m on the opposite side of the fence from most of my commenters — which means I have a bunch of sharp people criticizing me. Fun stuff.

If you’re bored by the topic, you’re cheerfully encouraged to scroll down to the next entry. But if you’re up for what I have described, then click on “more” and follow us to the extended entry . . .

In the first oral argument, Chief Justice Roberts asked a fascinating question of counsel for the defendant/appellant, and I’d like commenters to respond:

How comfortable are you that this line you’re trying to draw is one that’s going to be workable in practice? I mean, suppose the employee writes a memo, and the boss comes and says, “If you don’t promise me you’re not going to talk about this publicly, you’re fired.” And he says, “Well, I’m not going to promise that.” And so, he’s fired. Now, is that internal, or is that external?

(1st Oral Argument Transcript, page 27.)

Chief Justice Roberts never really got an answer to that question. What do you think? Leave your comments below. Is that protected by the First Amendment?

Note also that, in the first oral argument, Scalia seemed to have his facts and analysis pretty screwed up. Take this comment of his:

I guess if your job is to speak truth, and you speak falsehood, that’s a good reason to fire you, which is what happened here.

(1st Oral Argument Transcript, page 7.)

Mmmm, first of all, Ceballos was not fired, Justice Scalia. Second, this is an appeal from summary judgment, and the courts are required to assume (if such an assumption is justifiable, and it is here) that the plaintiff’s allegations are true. Thus, Justice Scalia should be assuming for the sake of argument that Ceballos got it right. Instead, he seems to be assuming the opposite.

I also think Justice Breyer, who ended up dissenting, but who still showed great deference to the employer’s need to control his employees, asked a very difficult hypothetical that shows why this is not an easy case:

[W]e have two sides to this argument: the deputies, who might reasonably contend that they did nothing wrong; your client, who thinks they were lying. And we also have a letter that your client wrote, where he said that these deputies are grossly inaccurate and clearly misleading.

Suppose his supervisor goes to him and says, “I think that that letter is not the right tone. Maybe you’re right, maybe you’re wrong; maybe they’re in good faith, maybe they’re not. And so, if you don’t change that tone, I’m going to discipline you.” All right?

Now, that’s my hypothetical, which seemed to me, perhaps, very much like this case. How, in your opinion, does the first amendment handle such a matter?

I think that’s a very interesting question. And note that Ceballos’s lawyer seems to think the supervisor would be authorized to take punitive action in that circumstance:

MS. ROBIN-VERGEER: If the supervisor told Mr. Ceballos that there was something wrong in the manner in which he conveyed his speech, and told him to revise the memo, that would have been — he would have been well within his rights to do so.

(1st Oral Argument Transcript, page 37.)

She goes on to explain that the Constitution doesn’t protect employees when they are simply insubordinate. She ultimately argues that the employer would win on prong two of the Pickering balancing test, and I think she’s just right about that.

Also, all of the analyses I have seen appear to assume that, had Ceballos simply gone straight to the press with his concerns bypassing any internal efforts to handle the problem, he would have protection under the First Amendment. Don’t be so sure:

MS. ROBIN-VERGEER: . . . But I want to get to why it is unwise and unjustified to draw the per se rule that petitioners are urging here. For one, it essentially means that a public employee such as Ceballos has to go public in order to have presumptive first-amendment protection.

JUSTICE GINSBURG: But then he would be violating the internal rules of the workplace.

MS. ROBIN-VERGEER: Correct.

JUSTICE GINSBURG: Where as giving his candid views — the search warrant — he’s giving his own opinion. But if he goes outside, he is violating a rule of the workplace. And it would seem to me that there are certainly measures could be taken against him for that.

MS. ROBIN-VERGEER: Correct. It’s a trap. They don’t tell you about what happened in the second case. If Ceballos had taken suspicions of police misconduct and gone to the Los Angeles Times, they would have fired him. And had he brought a case challenging that termination under the first amendment, he would have lost on under the Pickering balance.

(1st Oral Argument Transcript, page 45.)

Aha. So here’s a guy who allegedly wants to expose police misconduct. If he tries to handle it internally, he gets no First Amendment protection. If he doesn’t try to handle it internally, then he very arguably loses on prong two of Pickering, and has no First Amendment protection. And I have already discussed in an earlier post what would happen if — and I imagine this is a common example in the real world — the government employee tries the internal route first, and the public route second. All the employer need do is show that it would have fired him for the internal speech anyway, and he has no First Amendment protection.

Damned if you do, damned if you don’t.

Is this only a convenient argument made by the plaintiff’s lawyer? Nope — the defense lawyer agrees as well. From the transcript of the second oral argument:

JUSTICE SOUTER: But what if he simply goes to the public and says, “Look, there’s Brady material here, and it should be turned over, and, instead, my boss is telling me to suppress it.” That wouldn’t be turning over his work product. . . .

. . . .

MS. LEE: [I]n some respects, if you’re talking about job-required speech that you are — part of those duties, and the function, is to keep it internally until at least there’s some decision by the supervisor, and, rather than do that, you send it to the press or leak that information out, I think a governmental disruption in efficiency can be presumed there. So, I don’t think it’s as — I don’t think it’s as clear that that — that Mr. Ceballos would have ultimately prevailed under the balancing.

(2d Oral Argument Transcript, page 17.)

The lawyer arguing for the Bush Administration agreed:

When he’s saying it internally, he’s doing his job. When he’s going externally, he may be violating office policies.

(2d Oral Argument Transcript, page 30.)

So don’t tell me Ceballos could have gone straight to the papers with this information and been hunky-dory. The courts might have had to apply a balancing test to deny his claim, but he probably would have lost had he gone straight to the papers. Indeed, he might not still be a D.A. — the consequences to his career might have been harsher, and (perhaps) justifiably so.

Finally: many of you seem to think that there is a greasy, slippery slope here with no handholds along the way. Either we devise this black-letter, ironclad rule, or every single employment dispute ends up as a jury trial in the federal courts. I don’t agree with that, and neither did Ceballos’s lawyer, whom I quote here in a couple of passages from the second oral argument:

The first amendment doesn’t bar the Government from disciplining employees for insubordination or poor job performance or for continuing or persisting in a matter once their supervisor’s told them to stop. Where an adverse employment action’s motivated by such legitimate employment reasons, there’s no first amendment violation. But the Petitioners here have not claimed any legitimate interest in punishing Ceballos for what he said. . . they never claim that Ceballos did anything improper, that he exercised poor judgment, that he was insubordinate.

(2d Oral Argument Transcript, page 31.)

And this:

MS. ROBIN-VERGEER: [I]f, in this case, that judgment had been made by Ceballos’s employer, that he had exercised poor judgment, that he was rash or reckless in his conclusions, then the employer would have had a valid basis for taking an adverse employment action against him. But that is not what happened in this case.

(2d Oral Argument Transcript, pages 34-35.)

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.

By imposing a new and inflexible rule in this case, I think the justices in the majority went off in a new direction. They made up a new rule, cutting into valid First Amendment claims for the purpose of lessening litigation on these issues in the federal courts. And I think the result is unfortunate.

The world would not have ended if the Court had allowed Pickering balancing to be done in situations like that posed by the Ceballos case. Several circuits had lived with Pickering balancing in similar cases for quite some time, and the system didn’t fall apart.

Then again, I doubt that the world will end as a result of the decision, either. I just happen to disagree with it.

And that will hopefully be my last word on the subject, other than debating matters in the comments.

UPDATE: I lied; I also have this question:

Let’s say someone digs through a personnel manual and finds language saying that one of a Deputy D.A.’s many duties includes interacting with the public. Now: on his own time, using personal resources, he writes a letter to the editor on a subject touching on a criminal law issue. It doesn’t disclose confidential facts or opinions regarding one of his cases, but it does offer an opinion different from that of his boss. In the letter, he identifies himself as a Deputy D.A., but specifically says that he is speaking as a citizen and not pursuant to his duties.

His employer is mad that his employee disagreed with him so publicly, and fires him. The employer says the expression was pursuant to the employee’s official duties, because he identified his job and was interacting with the public. Therefore, his speech reflects on the office.

First Amendment violation?

Any different if it’s a blog, rather than a letter to the editor?

15 Responses to “Oral Argument Transcripts in Garcetti v. Ceballos”

  1. In the first oral argument, Chief Justice Roberts asked a fascinating question of counsel for the defendant/appellant, and I’d like commenters to respond:

    How comfortable are you that this line you’re trying to draw is one that’s going to be workable in practice? I mean, suppose the employee writes a memo, and the boss comes and says, “If you don’t promise me you’re not going to talk about this publicly, you’re fired.” And he says, “Well, I’m not going to promise that.” And so, he’s fired. Now, is that internal, or is that external?

    (1st Oral Argument Transcript, page 27.)

    Chief Justice Roberts never really got an answer to that question. What do you think? Leave your comments below. Is that protected by the First Amendment?

    Probably, but only by the lame, massively watered down version of the First Amendment that is the Pickering test. I frankly don’t see why anyone who is comfortable with the Pickering balancing test as a First Amendment doctrine is not comfortable with simply admitting that the First Amendment as we know it does not apply to these situations at all.

    Xrlq (f52b4f)

  2. X,

    Also see my update to this post. I pose a similar question that I’d like you to answer.

    Patterico (50c3cd)

  3. In your follow-up question, I think it’s a First Amendment violation – at least in the sense that the First Amendment has long been twisted by the courts. If you use your own resources and make it clear that you’re speaking for yourself, the fact that you also sometimes interact with the public in connection with your job is irrelevant.

    [Maybe not to a court. You didn’t really address my hypo: the employer can point to a non-contrived definition of my job duties that includes “interacting with the public.” Does that *clearly* not include public comments on issues related to the job and its function? — P]

    That said, I don’t doubt that if White Press Secretary Tony Snow were to go on the air publicly disagreeing with the White House, he’d soon be ex-White House Press Secretary Tony Snow, no matter how clear he made it that he was speaking for himself and not acting in his capacity as White House Press Secretary. The more I think about, the more I think this whole line of First Amendment jurisdprudence got off on the wrong foot. Better to issue a bright line rule: when government merely hires and fires people to do its job, it acts not as a government but as a market participant, and there is no state action for purposes of the Constitution.

    [So in Xrlq’s fantasy world, I could be fired for my blog if my bosses don’t like my political opinions. — P]

    Xrlq (f52b4f)

  4. [So in Xrlq’s fantasy world, I could be fired for my blog if my bosses don’t like my political opinions. — P]

    If you are commenting about the FMA or sports or politics in general, no. But if you are commenting about things relevant to the job, I see know reason why the blog shouldn’t reflect on you professionally as well as personally.

    tomjedrz (562284)

  5. Now: on his own time, using personal resources, he writes a letter to the editor on a subject touching on a criminal law issue. It doesn’t disclose confidential facts or opinions regarding one of his cases, but it does offer an opinion different from that of his boss. In the letter, he identifies himself as a Deputy D.A., but specifically says that he is speaking as a citizen and not pursuant to his duties.

    Let’s continue the story .. suppose said DDA is in court a few weeks later arguing a case, and the opposition pulls out the letter to the editor and argues that said DDA really doesn’t believe what he is arguing, and therefore cannot be trusted. Or what if the defense in a matter being prosecuted by someone else calls the first DDA to testify, because the letter makes clear that said DDA does not agree with the prosecution.

    Could it be argued that the DDA has harmed the ability of the office to do it’s job? Is it reasonable for the boss (the DA) to conclude that he cannot trust the judgement of said DDA?

    tomjedrz (562284)

  6. The weighing test seems appropriate to me; I’m with Pat.

    I note that I have some real doubts – based only on the opinion, and not any factual knowledge – that Ceballos’ claim is sound; in my office, a trial assignment is better than a calendar assignment. But that’s not relevant to the motion for summary judgment findings made.

    For those who support the decision, suppose the facts are these:

    Deputy Scumbag joins Deputy Patterico in the county of Corruptville. (Pat has to move there.)

    Deputy Scumbag tells Pat, “Ha, ha! I am burning videotape of the crime we got, since it shows Cute White Girl committing the crime, and not Large Black Man, who I want to convict, for he is large and black.”

    Pat tries to recall whether this is legal, and is pretty sure it isn’t. He writes a memo to his boss, saying “I think I have to tell the defense this, since it is Brady material and also kind of framy, and just pretty much evil. Also, I’m calling the FBI. Also, we should review all Scumbag’s prior cases because I’m against people getting incarcerated for crimes they didn’t commit.”

    Corruptville supervisor tells Pat that he should not say nuthin’ to no one because it would reflect poorly on the office to discover their routine of framing people, and a disrespected office would be unable to pursue justice.

    Pat tells the defense. Pat is fired, fired, fired.

    My read is that without a weighing test, this is unprotected and Pat is SOL. (Not, obviously, that anyone would continue to want to work in Corruptville, but let’s pretend that Pat didn’t just respond to his supervisor with, “Bite me, I quit,” and take the information to the Corruptville Daily Journal.)

    Is this the result we want?

    More vitally, is this a constitutional result?

    I don’t think it follows either precedent or good policy to make this a bright-line rule. At some point, public servants need to be able to rat out corruption (see: Quackenbush, C.) I’m willing to tilt the weighing heavily toward the government employer, but cover-your-ass policies are terrible, not just in Corruptville – where they eventually get found out one way or the other – but everywhere. Corrupt prosecutors hurt everyone, and should be exposed.

    That’s not exactly Ceballos’ case – he’s arguing a rather less egregious case than my hypothetical – but the logic applies. Even assuming Ceballos’ particular case is totally meritless, the logic used by SCOTUS in this case hurts both The People and the people.

    Bad ruling.

    –JRM

    JRM (de6363)

  7. [Maybe not to a court. You didn’t really address my hypo: the employer can point to a non-contrived definition of my job duties that includes “interacting with the public.” Does that *clearly* not include public comments on issues related to the job and its function?

    I hate double negatives, so I’m not going to attempt to answer that with a yes or no. I will say that just because your hypothetical job description may include interacting with the public, that shouldn’t preclude you from interacting with the public on your own time, as well. I don’t doubt that your real job description says something about appearing in court; that doesn’t mean you’re on the clock every time you show up to fight a traffic ticket, sue someone, etc.

    So in Xrlq’s fantasy world, I could be fired for my blog if my bosses don’t like my political opinions.

    Nope. In my fantasy world, you’d have the same rights as everyone else, no more and no less. Among those rights, under California law, is the right not to be terminated for peaceful political activities. You’d still retain that right; you just wouldn’t be able to constitutionalize it.

    Xrlq (f52b4f)

  8. Since you asked “what the law should be”. I find the concept of a lawyer as an employee offensive. The lawyer is supposed to exercise independent judgment on behalf of his client which is independent from the client’s judgment as well. In other words, in handling a case he is the boss. How is that compatible with the master-servant relationship of employment? I like the British system (although my information may be a little bit outdated). All barristers who prosecute or defend are private attorneys. The Public Prosecutor or Legal Aid, respectively, retain them and “brief” them in each individual case.

    [Grammatical question for Xrlq: Is the use of “respectively” necessary in the disjunctive or only in the conjunctive?:)]

    nk (d7a872)

  9. Patterico, you were not a big fan of Sandra Day O’Connor or her jurisprudence saying for example “I consider Powell and O’Connor to have been weak Justices, overly fond of multi-part balancing tests and splitting the baby.” (in a post dated 11/10/2005). So you get a couple of new judges more to your liking and they predictably reject one of O’Connor’s beloved balancing tests in favor of a bright-line rule and you are “disappointed” and complain at great length. Just what did you expect? Is “judicial restraint” just code for anti-abortion?

    James B. Shearer (fc887e)

  10. As an amused bystander to this discussion, may I say “Ha ha!” to the throw-down about balancing tests. I have been cringing every time those words, and “Pickering,” roll off my screen. This should have been kicked back to California. The man never had his First Amendment right to speak violated, since the First Amendment doesn’t say anything about having your job rearranged. Oh, there I go again, in that dream world where the amendments mean only what they say. :S

    Anwyn (01a5cc)

  11. JRM, I laughed all the way through your post, but I still can’t see it. Of course it’s not the result we want. The result we want is not to have an office that operates like Corruptville. Will this be accomplished if the Supreme Court says, “Corruptville, you must give Noble Pat back his job in your cesspool of a jurisdiction.?” No. Is it more likely to be accomplished if Noble Pat takes his case to the papers? Yes, because there must be somebody who will Clean Up Corruptville! Vote in your Local Election! … I digress. Bad ruling? I say: Bad case.

    Anwyn (01a5cc)

  12. Let’s continue the story .. suppose said DDA is in court a few weeks later arguing a case, and the opposition pulls out the letter to the editor and argues that said DDA really doesn’t believe what he is arguing, and therefore cannot be trusted. Or what if the defense in a matter being prosecuted by someone else calls the first DDA to testify, because the letter makes clear that said DDA does not agree with the prosecution.

    That doesn’t fit my hypo. I said:

    Now: on his own time, using personal resources, he writes a letter to the editor on a subject touching on a criminal law issue. It doesn’t disclose confidential facts or opinions regarding one of his cases, but it does offer an opinion different from that of his boss.

    I said the D.A. doesn’t offer opinions about any cases. Your hypo seems to suggest the D.A. did offer such opinions.

    Let’s say the point of disagreement was the correctness of the Ceballos case. D.A. says it’s a great case; employee says no on his blog. Can D.A. fire employee for his bad judgment, as evidence by his opinions expressed on his blog, which disagree with those of his employer?

    Patterico (50c3cd)

  13. And by the way, JRM, are you by any chance a fan of Joss Whedon’s work? “…who I want to convict, for he is large and black…” and “kind of framy” in particular kind of sound like Whendonesque humor. Not that I’m implying, you know, that you can’t write your own humor without being accused of emulating Whedon. Any similarities could just be coincidence. Or my imagination. But it made me curious.

    Also I now get to see if Patterico takes notice of glaringly off-topic comments.

    Anwyn (01a5cc)

  14. Also I now get to see if Patterico takes notice of glaringly off-topic comments.

    I’m thinking “glarinly” yes, but not so much with the garden-variety off-topicky-ness.

    McGehee (5664e1)

  15. IANAL – but I have a friend who is a lawyer (works for the Feds on contract enforcement). His comment was that this should have been a 9-0 decision – and he’s no law’n’order conservative. His thinking is that an employee producing confidential work product has no First Amendment right to break confidentiality at will.

    Let’s try an example. I. B. Giltee is busted for burglary and possession of stolen property, found in a search of his premises. His defense is handled by J. Cheever Loophole, assisted by Ms. Nye Eva Societtte. Loophole moves to have the swag excluded for improper search (no warrant). Giltee consented to the search when the cops said “You gonna let us in, or do we have to do this the hard way?” In a discussion between Loophole, Giltee, and Societte, Giltee makes it clear that he understood the cops meant, “spend a couple of hours getting a warrant while holding said premises under guard”, and that he thought all the swag was safely hidden.

    But Loophole plans to argue the cops extorted consent by an implied threat of violent entry. Loophole knows the judge is a sucker for receptive to such claims.

    Societte is upset by Loophole’s cynical tactics. Does she have a First Amendment right to tell the court that Loophole’s construction is a deliberate distortion?

    I don’t think so.

    I’m told it’s not uncommon for prosecutors to have meetings where they all review each other’s cases, looking for problems and opportunities. If a group of six prosecutors review a case, and one of them thinks a search was improper, does that one have a First Amendment right to argue in court against his colleague?

    I don’t think so.

    The effect of such a rule would be to destroy the mutual confidence of lawyers. Potential dissenters would be excluded from discussions, perhaps even from the office. Diversity of viewpoint would be too dangerous to be allowed.

    Rich Rostrom (4e26d1)


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