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.
Here is one of many links on the Web showing that U.S. soldiers could face the death penalty for their alleged actions in Haditha. This comes as little surprise to most sensible people; I publish the link only for the benefit of those (you and you) who called me “disingenuous” (or some misspelled variant of the word) for even suggesting the possibility.
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.
(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: 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: