Patterico's Pontifications


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 . . .



WSJ Editors Screw Up Analysis of Garcetti v. Ceballos

Filed under: Civil Liberties,Constitutional Law,Court Decisions,General — Patterico @ 10:50 am

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.


Good Article on Garcetti v. Ceballos

Filed under: Civil Liberties,Constitutional Law,Court Decisions,General — Patterico @ 6:07 pm

This is a great piece on the Garcetti v. Ceballos decision (which I have discussed here, here, here, here, and here.) Here is an excerpt from the article:

Among the questions the ruling leaves open: Will government employees be better off taking their complaints public first, instead of voicing their concerns to superiors? Did the Court really intend to embrace the notion that government workers should be protected least when they are speaking out about what they know the most, namely their own jobs? And should First Amendment protections turn on how a government job has been defined on paper, often a long-forgotten fiction?

“The Court seems to be saying that if you don’t know anything about a subject, you can speak freely about it,” said Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression. “I don’t see this decision giving much guidance.”

And yet after yesterday’s ruling, O’Neil and many other First Amendment advocates and analysts were left feeling that the high court had departed significantly from its traditional approach to government-employee speech, which included freedom of speech as one of the factors to be balanced in deciding whether an employee’s speech should be protected.

Read it all.

LAT: Court Got It Right in Garcetti v. Ceballos

Filed under: Civil Liberties,Constitutional Law,Dog Trainer,General — Patterico @ 6:41 am

The editors of the L.A. Times agree with Garcetti v. Ceballos:

SOME CIVIL LIBERTARIANS ARE denouncing a U.S. Supreme Court ruling Tuesday against a former Los Angeles prosecutor who says he was disciplined for speaking out against police misconduct. They may want to consider how they would feel if the same decision went against, say, a Bush administration official who was fired for saying that proponents of the president’s immigration policy suppressed evidence that illegal immigrants increase crime and disease.

That’s easy. I’d feel exactly the same.

P.S. Don’t misunderstand me. My contention is that the balancing test should remain available for such speech, not that the employee should win every time.

In the hypothetical with the Bush administration official, there is obviously a real potential for disruption of the workplace caused by speech like that described by the editors. Although the outcome would probably depend on the particular facts of the situation, such a public official would probably lose the balancing test.

By contrast, applying the balancing test to Ceballos’s situation, it’s hard to see the terrible disruption caused in the workplace by a Deputy D.A. writing a memorandum (allegedly) honestly setting forth his view of police misconduct.


More on Garcetti v. Ceballos

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 6:01 am

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).


Garcetti v. Ceballos: Why It’s a First Amendment Case

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 10:36 pm

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.

Put simply, Ceballos alleges that officials of the government punished him for expressing a particular viewpoint regarding a matter of significant public concern.

Read that sentence. How is that not a claim that raises at least potential First Amendment issues?

Xrlq complains that public employees should not have greater rights than private employees. We don’t. We all have the same right: not to have the government treat us badly based on the viewpoints we express.

Indeed, government employees enjoy this right to a lesser extent, because it’s easier for the government to punish us for the content of our speech when it employs us. Case law does indicate that the state has a freer hand to restrict speech when it acts as an employer. But this ability to restrict its employees’ speech is not unlimited. As Marty Lederman explains:

The state has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the state employer’s operations.

Lederman points to the case of Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), which was not overruled by Ceballos. Givhan

provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices.

What Ceballos did was give unlimited discretion to the state to retaliate against employee speech that is made pursuant to the employee’s official duties — as opposed to the speech in Givhan, which was related to the employee’s job, but still protected.

As Lederman sums it up:

So, it appears that if one’s duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick [balancing test] analysis still applies.

You might agree with this rule, but it’s a new rule, and not one obviously mandated by historical First Amendment precedent.

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.



Thank You For Reporting That Misconduct By Your Department, Officer. Your Reward: Legally Permitted Retaliation

Filed under: General — Patterico @ 7:58 am

Ken White has an interesting post about the power of law enforcement agencies to discipline employees for reporting misconduct:

NYPD Officer Craig Matthews complained about an illegal quota system for stops and arrests. As anyone familiar with NYPD culture could predict, he experienced retaliation from his superiors for doing so. When he sued, the NYPD hit him with an argument that’s outrageous but very likely legally correct: it’s your job to report misconduct, so the First Amendment doesn’t prohibit us from retaliating against you for doing so.

Wait, what?

Yup. It all goes back to the Garcetti v. Ceballos decision, which I railed against in posts too numerous to link individually, but which you can read here. The upshot: law enforcement can require you to report misconduct — and then, when you do report misconduct, they can legally discipline you for your report . . . precisely because it was part of your job to report it! Because when you fulfill functions of your job, you see, you lose your First Amendment protections.

Ain’t the law great?


Patterico’s Los Angeles Dog Trainer Year in Review 2006

Filed under: Dog Trainer,General — Patterico @ 12:35 am

It is time for this blog’s fourth annual review of the performance of the Los Angeles Times, which long-time Patterico readers know as the Los Angeles Dog Trainer. The first annual review was posted here. The second annual review was posted in two parts, here and here. The third annual review was posted here.

This year’s installment covers a number of topics, including the Michael Hiltzik sock-puppetry controversy; the alleged Ramadi airstrike; the paper’s decision to reveal the Swift counterterror program; the firing of the paper’s editor and publisher; the Iraq war and the war on terror; the paper’s shilling for Democrats during the 2006 election; and my decision to cancel the paper — among many others.

This post summarizes an entire year’s worth of work documenting omissions, distortions, and misrepresentations by this newspaper. I have made an effort to document my arguments that this paper is a regular practitioner of liberal bias. As with my previous posts, the proof is voluminous. As a consequence, don’t feel that you need to read the entire post in one sitting. Feel free to bookmark it and return to it in the coming days, browsing through the categories as they interest you.

I hope every new reader who reads this post will bookmark the main page and return often. Bloggers: please blogroll the site if you like it. I’ll be happy to reciprocate the link if I like your site — write me and let me know your URL, and I’ll take a look.

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Without further ado, let’s get to the bias:



Freedom of Speech Is in the Constitution; Abortion Isn’t

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 7:10 pm

James B. Shearer (see here and here), has implied that I am a hypocrite for supporting a balancing test in the context of First Amendment claims by government employees, but not in the abortion context. For example, he has said:

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?

Commenter Anwyn chuckled at this “throw-down” about balancing tests.

Mr. Shearer’s argument is that the text of the Constitution says nothing about government employees being punished for their speech. Indeed, the text of the First Amendment protects freedom of speech only when infringed upon by congressional laws, and says nothing about the executive or judicial branches (case law has filled in that gap).

For that reason, Mr. Shearer does not believe that the First Amendment would prohibit the President from ordering me to be audited because I got on a soapbox and denounced his immigration policies. I asked him: “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?” Mr. Shearer responded that he did not see a constitutional problem. His stance is the absolutist position that if it’s not in the text of the First Amendment, it’s not there, period.

The conservative/libertarian First Amendment scholar Eugene Volokh has decried similar views as nonsense:

This also shows the error of faulting liberal judges for “making up the law” in this area. Unfortunately, the First Amendment is so general that judges have to create legal rules that turn the broad words into concretely applicable law. Judges can’t just rely on the text. They can’t just rely on the original meaning, which is highly ambiguous. (As I mentioned, the Framers didn’t even agree whether the First Amendment applied to subsequent punishments, or only to prior restraints.)

One can criticize judges for just making up constitutional guarantees that aren’t mentioned in the Constitution at all. But here the Constitution does say something — but something very general. If it’s to be enforced at all, judges have to give it specific meaning. And that’s been part of our constitutional tradition since shortly after the Framing. Conservative and liberal judges alike have done this, as to various constitutional provisions, because they have to do it.

The difference between a real constitutional guarantee like free speech, on one hand, and a phony one like abortion, on the other, couldn’t be more clear. The Constitution says something about freedom of speech. It says nothing about abortion — or even a general right to privacy.

The history of the “right to abortion” is well documented. The justices decided what they wanted to do on policy grounds first, and constructed the rationale later. It is a “right” that doesn’t exist in the Constitution at all, and applying Professor Volokh’s logic, it is justified to criticize judges for making it up.

The abortion “right” is thus quite a different animal from freedom of speech, where judges have to make up rules to give meaning to very general (but most assuredly existent) constitutional rights. It is a bogus argument to compare the two.

Sometimes judges have to create rules to enforce constitutional provisions. Sometimes those rules involve balancing competing interests. I prefer to avoid such tests when not necessary, but in the context of speech by government employees, I think it’s necessary. That doesn’t mean that I have to concede that the Supreme Court’s abortion decisions are legitimate — and it doesn’t make me a hypocrite.

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