LAT: Court Got It Right in Garcetti v. Ceballos
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.
Interesting. Certainly workplace free speech issues are thornier when the employer is the government.
There is something missing in the Ceballos discussion. I don’t think the issue is that Ceballos wrote the memo, but rather that he disclosed it to the defense, against the direct instruction of his superiors.
Ceballos didn’t simply speak out, he used his position to interfere with (and undermine) the prosecution, and now is trying to hide behind the 1st Amendment.
He had other options beyond disobeying orders and submitting the unredacted memo. He could have gone over his superior’s head. He could have consulted with the judge in the case privately, or consulted with a third party to get another opinion about what disclosure is necessary. Instead he violated a direct order.
Patterico — a comment on another one of these posts suggested that while the facts disclosed in the memo needed to be disclosed, the conclusions were work-product and privileged. Is that accurate? And if so, didn’t Ceballos break privilege?
tomjedrz (562284) — 6/2/2006 @ 9:26 amIt still seems to me that the main point is not how the guy is treated after he annoys his superiors, but whether or not he is thrown in the slammer, denied access to press, a megaphone, the internet, a telephone, etc. I.E. isn’t the first amendment about being able to speak without being forcibly silenced by the government, NOT about being able to speak without being fired by your employer? In other cases it most certainly would have been the left wringing their hands over a teacher, say, fired for saying what he or she thinks even if he or she is a raving moonbat. I still say the major issue is: is his message being heard to the point where people higher up than his higher-ups can investigate the actual wrongdoing? If so, he’s got all the First Amendment he’s entitled to, imho.
Though the fact that the Times agrees causes me concern over my position. 😛
Anwyn (01a5cc) — 6/2/2006 @ 10:06 amP.S. The Times’s example is stupid. They seem to be saying that civil libertarians (and the Times) would want evidence suppressed that suggests illegal immigrants spread crime and disease. Because, you know, clearly that evidence would be fabricated and should be suppressed and the guy should be fired. Or am I misreading their argument?
Anwyn (01a5cc) — 6/2/2006 @ 10:08 amThe facts in the cases in which the Court held the communication to be protected under the First Amendment for the most part seem less compelling — and less worthy of protection — than the facts in which the communications are not protected because of Garcetti v. Ceballos. It may be because I still haven’t read that decision, but I don’t understand what it is about disclosing wrongdoing in the course of one’s duties that makes it less worthy of First Amendment protection. But the Court of Appeals for the Federal Circuit made roughly the same distinction in Huffman v. Office of Personnel Management, 263 F3d 1341 (Fed. Cir. 2001), in deciding when a disclosure of wrongdoing is protected under the Whistleblower Protection Act, which applies to most federal employees. The Federal Circuit distinguished 3 different situations. First, when the employee has, as part of his normal duties,been assigned the task of investigating and reporting wrongdoing by government employees and in fact reports that wrongdoing through normal channels, the court held that the disclosure is not protected. Second, when an employee with such assinged investigatory responsibilities reports the wrongdoing outside of normal channels, the disclosure is protected. Third, when an employee is obligated to report the wrongdoing, but such a report is not part of the employee’s normal duties or has not been assigned those duties, the Court failed to give a clear answer, stating that the disclosure “may” be protected, but it did not specify when it would be protected, and when it would not be protected. From what I have read about Ceballos, his disclosure likely falls under the third, ambiguous area.
Tim K (7e41e8) — 6/2/2006 @ 12:48 pmAnwyn, try looking at the increasing prevalence of tuberculosis in the US–an increase which can be directly attributed to the presence of immigrants from various Third World countries (not necessarily from those who manage to tunnel, wade or run across the Southern border).
Mike Myers (3a4363) — 6/2/2006 @ 4:21 pmI think the LAT is going to go contrary to anything you write or say just because you write or say it.
How about writing an article endorsing Al Gore?
Huey (81c03e) — 6/2/2006 @ 4:38 pmI don’t think the issue is that Ceballos wrote the memo, but rather that he disclosed it to the defense, against the direct instruction of his superiors.
He did? What is your basis for saying that?
Patterico — a comment on another one of these posts suggested that while the facts disclosed in the memo needed to be disclosed, the conclusions were work-product and privileged. Is that accurate? And if so, didn’t Ceballos break privilege?
No. As Souter’s dissent makes clear, he turned over a version that redacted his conclusions as work product.
Patterico (50c3cd) — 6/2/2006 @ 6:12 pmI think the LAT is going to go contrary to anything you write or say just because you write or say it.
Heh. If only I had that kind of power . . .
Patterico (50c3cd) — 6/2/2006 @ 6:16 pmMike Meyers–I wasn’t at all commenting on evidence about illegal aliens and disease and am making no argument on either side of that–I was merely trying to understand what the Times was saying. They seem to be saying that civil libertarians ought to be in favor of somebody being fired for saying that proponents of Bush’s policy suppressed evidence. Why would anybody be in favor of that, regardless of the truth of the evidence? Their argument confused me. I assumed that the Times would assume the evidence was fabricated and the guy of course should be fired. Apparently I am not very good at communicating sarcasm on this blog. 🙂
Anwyn (01a5cc) — 6/2/2006 @ 6:27 pmYou’re perfectly good at it. I’ve understood your point every time, even when I have responded seriously to throw you off.
I too was baffled by their point, but I think you have it just right.
Patterico (50c3cd) — 6/2/2006 @ 6:30 pmAh, good, then. And don’t get me wrong–I think it’s ridiculous, offensive, mean, any number of adjectives to retaliate against a good worker who refused to follow the underhanded (at least. possibly illegal?) directions of his supervisors. But of course if the employers weren’t the retaliatory kind, one assumes they also would not be the underhanded-directions kind. What bothers me is the potential for the decision, had it gone the other way, to be used on various flimsier pretexts to force employers, even government agencies, to retain even the most outrageous people who then feel they can get away with anything at their boss’s expense. Perhaps I don’t know enough legalese to realize that’s not a valid sequel to the decision, but that’s how it looks on face value.
Anwyn (01a5cc) — 6/2/2006 @ 6:42 pmWhat bothers me is the potential for the decision, had it gone the other way, to be used on various flimsier pretexts to force employers, even government agencies, to retain even the most outrageous people who then feel they can get away with anything at their boss’s expense.
There are other forces that already cause that to happen.
Patterico (50c3cd) — 6/2/2006 @ 6:47 pm