Patterico's Pontifications


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.



More Hillary-As-Centrist

Filed under: Media Bias — Patterico @ 10:02 pm

Whee! It’s another Big Media portrayal of Hillary-as-centrist. Before it was the L.A. Times (see here and here). Today it’s the Washington Post. This one is actually a little more nuanced than the L.A. Times was, but it still basically maintains the fiction that, as the headline puts it, she is “A Politician Not Easily Defined.”

Depends on whom you ask. It’s easy for me.

(Via Allah.)

Weekend Roundup, Sort Of

Filed under: Blogging Matters,General — Patterico @ 6:37 am

I don’t have the time or inclination to do a full roundup of all the posts here from the three-day weekend. That’s why God put a scroll dial on your mouse. But I will note a couple of (hopefully) interesting posts, for the weekday-only readers:

  • “The Power of the Jump”™ was featured in two posts this weekend. One was about the L.A. Times‘s decision to highlight the fact that women “routinely” serve more time in jail under the L.A. County Sheriff’s early release policy. On the back pages, we learn that men have also “routinely” served more time as well.
  • In a second “Power of the Jump”™ post, I note that the paper reports on whether a jail inmate’s death was a suicide, or the result of beatings and neglect by jail personnel. Only the back pages do we learn that the man was suicidal, and had twice previously tried to commit suicide.
  • I rant about the Gang of 14 capitulation deal and the Republicans’ decision to fold on several controversial nominees — at least for now (which means, with a disastrous 2006 election, forever).
  • Plus: John Kerry is back with more on the Swift Vet allegations — which gives us a chance to refight all those old battles. It’s like it’s 2004 all over again!

My Memorial Day: Where Are the Freaking Screwholes?

Filed under: General,Real Life — Patterico @ 6:02 am

So yesterday I tried to put the kids’ swingset together. I was doing pretty well, until I got to a part in the instructions where there have to be screwholes to put in the screws — and, no screwholes.

I hate the instructions that come with these things: a bunch of pictures of some guy putting it together, with almost no words to walk you through it. I’m almost 90% positive there have to be these screwholes, but they don’t say so. So 10% of me says: who knows?

Oh well, it was a nice day anyway.


But Clarence Thomas Prefers Milwaukee’s Best

Filed under: Humor,Judiciary — Patterico @ 7:38 pm

What do Chief Justice Roberts, Nino Scalia, and Sam Alito have in common — other than being right-wing reactionary Supreme Court Justices, that is?

They all like Schiltz.

The Power of the Jump™: Women “Routinely” Serve More Time Than Men in L.A. County Jail — Except, That Is, When They Don’t

Filed under: Crime,Dog Trainer — Patterico @ 11:23 am

(Note: “The Power of the Jump”™ is a semi-regular feature of this site, documenting examples of the Los Angeles Times’s use of its back pages to hide information that its editors don’t want you to see.)

The L.A. Times says in a front-page article:

Under its policy of selectively releasing criminals to ease jail overcrowding, the Los Angeles County Sheriff’s Department has routinely forced women, prostitutes arrested in Compton and certain gang members to serve more time than others convicted of identical crimes.

So women have “routinely” been forced to serve more time than men, eh? That certainly is a dramatic revelation. But guess what? When you turn to the back pages, you learn that men have also “routinely” been forced to serve more time than women. And, you find, men and women now “routinely” serve the same percentage of their sentences. It all depends on available space, and what period of time you look at. Let’s look at the details, which are set forth on Page A14:

Over the years, the Sheriff’s Department has maintained different release policies for men and women, even for those convicted of the same crimes.

Male and female inmates are housed in separate jail sections, and sheriff’s officials said their release policies are based on the amount of space available and fluctuations in arrests.

Two years ago, women convicted of all but the most serious crimes were released immediately, serving none of their sentences. But in the last year, the department required women convicted of assault to serve 25% of their sentences while men served just 10%.

Klugman said he changed the policy earlier this month. Men and women now are eligible for release after serving 10% of their time.

So: two years ago, women served less (actually, no) time. One year ago, they served more, based on available space. And now, they serve the same. And this situation is portrayed on the front page as women “routinely” being forced to serve more time than men.

I guess that sounds more dramatic than:

Under its policy of selectively releasing criminals to ease jail overcrowding, the Los Angeles County Sheriff’s Department has at times routinely forced women to serve more time than men, and at other times routinely forced men to serve more time than women. And currently, men and women serve the same amount of time. Routinely.

In an unrelated front-page story, the paper reports that roulette wheels routinely come up black. On Page A14, the caveat is added: except when they come up red.

Republicans Caving on Judicial Nominees, Thanks to Gang of 14 Deal

Filed under: Judiciary — Patterico @ 9:53 am

Don’t let the confirmation of Kavanaugh fool you into thinking that all is hunky-dory on the judicial confirmation front. A recent Bloomberg story suggests that Republicans plan to cave on all the other controversial nominees:

The U.S. Senate, on the brink of gridlock over judicial nominations a year ago, is finessing a showdown over President George W. Bush’s most divisive choices for the federal bench.

Senators of both parties, preoccupied with other issues, are displaying little appetite for an all-out battle. Democrats, who are reluctant to oppose nominees for purely ideological reasons, won’t try to block White House aide Brett Kavanaugh, 41, who is scheduled to be confirmed to an appeals court judgeship today. Republicans, in turn, probably will put aside two other controversial nominees, Terrence Boyle and William Haynes II.

Link via Jonathan Adler, who says: “If true, this is bad news for Boyle (not to mention Haynes, Wallace, and Myers).” He’s right. From the article:

“We will take the others one by one,” Frist told reporters this week. He said he had no plans to bring up Boyle and didn’t respond when asked whether he would seek a vote on Haynes.

. . . .

Potential casualties [also] include William G. Myers III, 40, a mining and ranching lobbyist named to the 9th U.S. Circuit Court of Appeals in San Francisco, and Michael B. Wallace, 55, a Jackson, Mississippi, lawyer nominated to the 5th Circuit in New Orleans.

. . . .

Myers was left in limbo when the agreement by the Gang of 14 permitted votes on three of 10 nominees who had been blocked.

It’s hard to imagine why Republicans would be so skittish about a fight on these judges. Don’t they still control the Senate?

Yeah, in theory. But there’s this little thing called the “filibuster” that we had the chance to knock out, but didn’t.

But didn’t that Gang of 14 capitulation deal bring us Alito and Roberts?

No. As I have said before, they would have been confirmed anyway. And if we had deployed the nuclear option, we would have gotten all the judges we already got — plus Estrada, Kuhl, Saad, and the judges who look like they are getting thrown under the bus now.

Remember: fight John McCain, wherever you find him.

P.S. Meanwhile, Adler notes, the Administration isn’t bothering to nominate anyone new. Not that any new controversial nominee has a prayer of ever being confirmed, thanks to the Gang of 14 Weasels.

P.P.S. Confirm Them has a suggestion for a good candidate for the President to nominate: Solicitor General Paul Clement. He could be replaced by Miguel Estrada — that is, if Estrada would take the position, after the unnecessary hell he was subjected to by Retaliacrats.

Power Line Is Four

Filed under: Blogging Matters,General — Patterico @ 9:52 am

Happy fourth blogiversary to Power Line.

Thomas Friedman Will Know in Six Months

Filed under: General — Patterico @ 9:51 am

Heh. I think we’ll know in six months whether Thomas Friedman thinks that we’ll know in six months whether the situation in Iraq will ever turn around. (Via Cori Dauber.)

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