Good Article on Garcetti v. Ceballos
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.
I skimmed through the Court’s opinions really fast, and so am now in a position to opine at considerable length. 🙂
If I write a half-baked memo to my boss that reveals me to be inflammatory and misguided, and my boss consequently fires me from my government job, can I raise a First Amendment issue? Of course not. That’s the main issue here.
The boss in this case retaliated against the plaintiff because of the internal MEMO, not because of court testimony, and not because the MEMO was leaked or became public.
The issue of how this all relates to teachers is moot. The Court specifically said that it was not deciding how “the analysis we conduct today would apply … to scholarship or teaching.”
Patterico says the main problem with Garcetti v. Ceballos is that it allows government retribution for employee speech regarding matters of significant public concern, if the speech begins internally, pursuant to official duties, and ends up going public. One of Patterico’s examples is “a federal air marshal who believes that it’s ridiculous that the government makes him wear a suit and tie … making him a target for terrorists. He expresses his concerns … so they demote him. Then he goes to the press….”
But the Court’s decision in this case doesn’t in any way inhibit or prevent the guy from going to the press after he’s been demoted. The Court said this case does not apply to “public statements outside the course of performing official duties….” So, I really don’t have a problem with this decision. Obviously, the federal air marshall in Patterico’s example shouldn’t have been demoted, but the federal courts are not supposed to be the nannies who double-check every demotion of every government official in the country. Whether he’s demoted or not, the First Amendment protects his ability to complain about the stupid policy in public, and to complain also about having been demoted if he was demoted. I think that’s plenty of protection from the First Amendment.
Andrew (a112cd) — 6/2/2006 @ 11:29 pmThe boss in this case retaliated against the plaintiff because of the internal MEMO, not because of court testimony, and not because the MEMO was leaked or became public.
It’s amazing how you know all that.
Patterico (50c3cd) — 6/3/2006 @ 1:10 amSeems to me Patterico is beating a dead horse here with 3 posts on this in less than 4 days.
sharon (fecb65) — 6/3/2006 @ 5:39 amWe don’t know that, of course, as the D.A.’s office denies Ceballo was retaliated against at all. However, Andrew’s basic point is valid: rational employers are far more likely to terminate or demote an employee for writing a poorly-reasoned memo than for writing an excellent one that tell them what they need to know, but simply didn’t want to know.
Xrlq (f8b526) — 6/3/2006 @ 6:55 amAnd, oddly, a jury ruled against Kaiser for disciplining a doctor who complained about poor conditions at a Kaiser hospital.
It seems that his first amendment rights with respect to his private employer are greater than a similarly situated government employee would be.
Kevin Murphy (0b2493) — 6/3/2006 @ 7:39 amJust a thought: does this case anticipate upcoming CIA and other national security “whistleblower” prosecutions?
Kevin Murphy (0b2493) — 6/3/2006 @ 7:40 amThe Wall Street Journal has an article in support of the decision in Garcetti v Ceballos. Unfortunately, it is for subscribers only so it would be pointless to link it. The WSJ contends that to have ruled otherwise would involve the Federal courts excessively in the affairs of the executive branch and state and local governments.
Stu707 (18fdc8) — 6/3/2006 @ 8:12 amXrlq says:
However, Andrew’s basic point is valid: rational employers are far more likely to terminate or demote an employee for writing a poorly-reasoned memo than for writing an excellent one that tell them what they need to know, but simply didn’t want to know.
And Stu707 quotes the WSJ as saying:
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.
All these arguments assume that the employer is rational, and the employee simply disagrees with policies that he signed up to support.
But if Ceballos’s allegations are true (I’m not saying this, but the Court had to take them as such), then at least one of his supervisors (who allegedly tried to keep him from turning over his memo with exculpatory information) tried to retaliate against him for fulfilling the very moral, ethical, and constitutional obligations he signed up to fulfill. That supervisor did not act rationally, if the allegations are true.
Patterico (50c3cd) — 6/3/2006 @ 10:47 amUnderstood. But again, that’s a matter of bad governance, not the sort of thing the First Amendment was intended to protect against. Got a probelm with the result? Then lobby Congress and/or the legislature to broaden the whistleblower laws.
[Whether the First Amendment was intended to protect against this was the very issue to be decided. When the bad governance in question is the government’s punishment of speech based on content of speech, the First Amendment is indeed implicated. It’s nice that we can seek the passage of other laws, but our ability to do so does not affect the constitutional analysis. — P]
Xrlq (f8b526) — 6/3/2006 @ 11:11 amA better example might by a line transit worker spotting a flaw that could endanger the public.
If it’s systemic rather than some overheated part or signal switch and he’s nettlesome in general, are we the public made more vulnerable by muting his instinct?
Justice Kennedy allows that “employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government.”
“Some possibility.”
Some consolation.
steve (afbf12) — 6/3/2006 @ 11:16 amPatterico properly criticizes my comment that:
It would have been more accurate to say:
[Wrong. The courts were required to assume on summary judgment the truth of Ceballos’s allegations, which were that the retaliation was for 1) the memo, 2) the testimony, and 3) his speech to a Bar association gathering. — P]
After all, the Ninth Circuit said, “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech….” The issue that the Supreme Court addressed was not whether leaking the memo constituted protected speech, or whether testifying about the memo constituted protected speech, but rather whether the memo itself was protected speech.
[This part is correct. The part above is not. — P]
Andrew (917eef) — 6/3/2006 @ 11:26 amPatterico, the point is that the U.S. Supreme Court was addressing a particular holding of the Ninth Circuit regarding whether the allegations in the memo were protected, NOT a Ninth Circuit holding about whether leaking the memo was protected, and NOT a Ninth Circuit holding about whether testifying about the memo was protected. Thus, as far as the US Supreme Court was concerned, the assumption was that the retaliation was because of the memo, rather than because of court testimony, or because the MEMO was leaked or became public.
I haven’t read the Ninth Circuit decision, or the district court decision in this case. But, if those lower courts determine that the retaliation may have been due to leaking the memo, or due to testifying about the memo, then the plaintiff should win on summary judgment — there’s nothing in the SCOTUS opinion to prevent him from winning in that way.
Andrew (917eef) — 6/3/2006 @ 11:46 amThus, as far as the US Supreme Court was concerned, the assumption was that the retaliation was because of the memo, rather than because of court testimony, or because the MEMO was leaked or became public.
I don’t think the Court made any assumption like that, because that would have been contrary to the allegations.
I think all you’re really trying to say is that the Court was addressing only the issue of the memo. That’s entirely true. But you shouldn’t go further and say that the Court assumed the retaliation was only for the memo. The Court did not do that.
Patterico (50c3cd) — 6/3/2006 @ 12:52 pmBut again, that’s a matter of bad governance, not the sort of thing the First Amendment was intended to protect against. Got a probelm with the result? Then lobby Congress and/or the legislature to broaden the whistleblower laws.
There already exists a whistleblower law that protects “any disclosure” that the employee reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to the public safety. 5 U.S.C. 2302(b)(8). As I’ve explained in a previous post, the U.S. Court of Appeals for the Federal Circuit, which reviews all such claims within the federal government, has nonetheless ruled (in Huffman v. OPM) that when a federal employee makes such a disclosure in the regular course of his job duties, his disclosure is not protected.
But I fail to see why such speech is not protected by the First Amendment. Everyone keeps referring to the type of disclosure Ceballos made as “private.” But it’s not like he made a comment to his wife at dinner; he communicated to appropriate government officials while doing the public’s business. Sounds pretty public to me.
Tim K (4c4927) — 6/3/2006 @ 12:57 pmPatterico:
Yes, it did. The entire decision assumed the alleged retaliation was based on the memo, or possibly on Ceballos’s other job-related duties (e.g., his testimony at the hearing). It leaves no room for the view that the D.A.’s office could have disciplined Ceballos for First Amendment-protected activities.
Tim K:
In this discussion, “public” and “private” are essentially shorthands for “speaking as a private citizen” and “speaking in the course of his job duties,” respectively. It’s not a public/private distinction per se. What Mr. Ceballos said privately to his wife (or to Patterico, to you, to me, or just about anyone else except his employer) is protected speech under the First Amendment.
Xrlq (f8b526) — 6/3/2006 @ 1:30 pmXrlq says:
Find me the part of the decision that says this.
I don’t think you understand what the decision was addressing, X. Read Souter’s dissent. It makes clear that Ceballos raised claims of retaliation based on 1) his memo; 2) his testimony; and 3) a speech. The Supreme Court ruled only as to #1. I’ll turn it over to Justice Souter:
True, it’s only a dissent, but I see nothing in the majority decision that is inconsistent with this.
Do you?
Patterico (50c3cd) — 6/3/2006 @ 1:39 pmXrlq says: In this discussion, “public” and “private” are essentially shorthands for “speaking as a private citizen” and “speaking in the course of his job duties,” respectively. It’s not a public/private distinction per se. What Mr. Ceballos said privately to his wife (or to Patterico, to you, to me, or just about anyone else except his employer) is protected speech under the First Amendment.
I understand that. What I don’t understand is why the First Amendment should protect the one and not the other. The core value of the First Amendment is to protect speech in which citizens are addressing matters of public concern. What Ceballos was addressing was whether a law enforcement official filed a false affidavit in order to get a warrant. How is that not addressing a matter of public concern? Why should the fact that he was addressing this matter of public concern while performing his duties as a public official make it less worthy of First Amendment protection than if he wrote a letter to the editor?
Tim K (4c4927) — 6/3/2006 @ 2:20 pmTim K, the First Amendment says:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
To me, this means Congress can’t pass a law making it illegal to call the President a fool. It doesn’t mean that if you are White House press secretary and call the President a fool, the President can’t fire you.
It is true there are a number of Supreme Court precedents which go beyond the plain meaning of the amendment to prohibit firing (or other discipline) of public employees for speech. However I don’t see any reason to be surprised or disappointed that the conservative bloc on the Supreme Court, which generally favors a narrow rather than expansive view of Constitutional rights and the proper scope of the courts, declines to extend these precedents further.
James B. Shearer (fc887e) — 6/3/2006 @ 4:34 pmAnd the public policy arguments being advanced are the sort of thing the liberal judges on the Supreme Court come up with when they invent some previously non-existent constitutional right. Is Patterico opposed to an activist Court only when it is activist in a direction he opposes?
Is Patterico opposed to an activist Court only when it is activist in a direction he opposes?
The public policy arguments being advanced, as I have patiently explained before, are part of the constitutional analysis.
There are decisions in this area, I have also explained, that are unanimous, and disagree with James Shearer — who thinks the First Amendment doesn’t apply to constrain the president, only Congress.
Patterico (50c3cd) — 6/3/2006 @ 5:15 pmJames, I grant you that the Supreme Court could have limited its interpretation of the First Amendment to preventing Congress from passing laws that abridged freedom of speech. (And after the passage of the 14th Amendment, I believe states are similarly limited.) But the Supreme Court, including its “conservative bloc,” has never construed the First Amendment in this manner. It has instead construed the First Amendment to prevent state action of other sorts (like firing employees), because permitting such state action would have the result of “abridging” the employees’ freedom of speech.
Tim K (4c4927) — 6/3/2006 @ 5:20 pmWith that background, it’s important to understand that the Court in Garcetti v. Ceballos was not only not “extending its precedents further,” it was retrenching on existing precedent, which applied a balancing test to freedom of speech by public employees. Now, there is a black letter rule that no protection is extended to a public employee who addresses a matter of public concern in the course of performing his job. But protection is still provided if he writes a letter to the editor. My question is, if the Court is going to protect the one, why not the other? I understand the need for the previous balancing test, as some speech that would be fine in other contexts can be unduly disruptive in the workplace. But if you are going to protect a public employee from retaliation when he writes the letter to the editor, why is he entitled to no protection under any circumstances if he discloses wrongdoing as part of his job? In neither instance are you preventing Congress (or a State) from passing a law abridging freedom of speech.
Tim K, you say the Supreme Court has “never” construed the First Amendment as limited to laws passed by Congress. Can you provide some precedents preceding 1900 illustrating this?
In any case I think an employer obviously has a greater interest in limiting on job speech in the course of employment than off job speech and hence is more likely to prevail in a balancing test.
James B. Shearer (fc887e) — 6/3/2006 @ 5:36 pmJames, I agree that a government employer has a much greater interest in limiting an employee’s on-the-job speech than it does in limiting off-the-job speech. For that reason, employers frequently win First Amendment challenges under the traditional Pickering balancing test. But that sort of balancing test is precisely what’s been eliminated by the Supreme Court in Garcetti v. Ceballos. Instead, we now have a black letter rule that on-the-job speech is completely unprotected. That’s why I dislike the Court’s decision. And it makes no sense, given that the same message will be protected, provided it is made outside of the workplace.
Tim K (4c4927) — 6/3/2006 @ 6:15 pmPatterico, you’re right; I interpreted “you shouldn’t go further and say that the Court assumed the retaliation was only for the memo” as a denial that the court had assumed it for purposes of this ruling, which of course it did do.
[Can you give me some support for the idea that the Court “of course” made this assumption? — Patterico]
Because what he does on his own time is his own business. What he did on the job is his employer’s business.
Xrlq (f8b526) — 6/3/2006 @ 7:28 pmPetesake, I wrote a batch of stuff and then lost it through stupidly clicking on the article link to get a quote. Trying to reconstruct …
… Reading this article made me feel like I should have gone to law school to be qualified even to comment on this issue. And no, Patterico, I still haven’t read the case, but I think I’ll have to learn to read legalese if I’m going to keep hanging out here.
Patterico seems to be falling into a realist camp while some of us dissenters are still idealistically believing that the First Amendment deals only with Congress passing laws to restrict speech, establish religion, etc. Given the realism that the Court has already set precedent of dealing on a First Amendment basis with cases that aren’t about unconstitutional laws, P. seems to be saying that Ceballos is being treated differently than similar, previous cases. But is that a good reason for the Court to go on piling up decisions that extend its influence into this area? I appreciate that the nerve to stand up to shifty employers might be a rare thing, but don’t whistleblowers have to consider the potential consequences before they blow the whistle, regardless of what the courts may or may not say if he were to be punished and sue? I may be off the track.
[Accepting Ceballos’s allegations as true, he wasn’t “blowing the whistle,” but just doing what he was obligated to do by morals, ethics, and the Constitution. — P]
A related but slightly tangential item: I’ve often wondered why, with a big-enough dust-up with one’s employer, one would *want* to stay employed under those people. And if they do, as in this case, well, he’s not fired–will he still be doing highway duty in six months? Is it worth it? Up to him to decide, but I don’t think it’s up to the Supreme Court to say, “DA’s Office, you can’t make that man work in a remote location just because he foiled your evil plan to do yadda such-and-such with exculpatory whatzit.” Just a total nonlawyer’s possibly naive viewpoint.
[It’s a big office. — P]
Anwyn (01a5cc) — 6/3/2006 @ 8:18 pmHere’s what the Ninth Circuit said in Ceballos v. Garcetti:
So, the courts did assume that the memorandum was the only issue, while leaving the door open to the possibility that it was not the only issue. In any event, regardless of what the courts assumed or didn’t assume, the main point is that they didn’t address other free speech issues, and Ceballos may yet win on those other issues. So the Supreme Court’s decision in this case was not as cataclysmic as Patterico made out. It was a good decision, IMHO.
Andrew (7c175d) — 6/3/2006 @ 10:10 pmAndrew says:
I guess I really should have explained that the Court was addressing only the memo, and that there were other grounds on which Ceballos could win. Oh, wait — I did, in my very first post on this case:
I guess I didn’t misrepresent it after all.
Patterico (50c3cd) — 6/3/2006 @ 10:19 pmOkay, I was using “whistle blower” as a term of convenience, always a dangerous thing around a lawyer. P, if you say the man was entirely in the right, I have absolutely no trouble taking your word for it. But does it really take the Supreme Fricking Court to say that his employers aren’t allowed to jerk his job around, based on the First Amendment? Do we really want that level of protection (or interference) out of that particular instrument? That was where I jumped the track, not on the circumstances of his particular case. Maybe it does really take the Supreme Court. I officially throw up my hands and say, “I don’t know.”
Anwyn (01a5cc) — 6/3/2006 @ 10:51 pmP, if you say the man was entirely in the right, I have absolutely no trouble taking your word for it.
If you are talking about whether he was right on the *facts,* then no, I absolutely do *not* say that. I don’t say he was wrong, either. I have taken pains throughout my posts and comments to make it clear that I am *not* going to take sides as to whether Ceballos was right on the facts. That’s just a thicket that I don’t want to wade into, and I’m not going to, and I want to make sure everyone understands that I am not going to.
What I am saying is that the case was decided at the summary judgment stage, and so the trial court, and all the appellate courts reviewing the decision, have to take Ceballos’s allegations as true, for purposes of making their decision about what the applicable law should be.
Perhaps I should explain this better for the non-lawyers. It’s a legal fiction. The idea is: the plaintiff gets his trial if, assuming his facts to be true, he might legally win. He doesn’t get his trial if, even assuming his facts are true, he still has no valid legal theory.
So the court has to look at this case and say: okay, we don’t know whether Ceballos’s allegations are true or not, but for purposes of deciding this case, we are going to assume that they are. Then the majority says, only as to the claims he made concerning retaliation for the memo, that he loses anyway. The dissent merely says that he should have his day in court.
See what I mean?
I am not saying he’s right. I wasn’t there. I don’t know. And I know some of the people involved, and I’m just not going to wade into it. And if anybody ever says I did take sides on the facts, I’ll point them to the numerous places (like this comment) where I explained very carefully that I am *not* doing that.
But does it really take the Supreme Fricking Court to say that his employers aren’t allowed to jerk his job around, based on the First Amendment?
Well, sometimes these First Amendment issues go to the Supreme Court. That’s mainly what they are there for, is these constitutional claims.
Patterico (50c3cd) — 6/3/2006 @ 11:02 pmPatterico, I never said you misrepresented anything. I said that, given the Court only ruled on #1 and not #2 and #3, this SCOTUS decision wasn’t cataclysmic, as you made out.
Geez, I logged back on expecting to find you eating some crow about what the courts “assumed,” and instead I found all this stuff about misrepresentation. We’re going to have to see about curtailing your First Amendment rights. 🙂
Andrew (7c175d) — 6/3/2006 @ 11:04 pmI interpreted your comment as accusing me of hiding the fact that Ceballos had two other grounds for his lawsuit: i.e. “Once you know that the issue over the memo is only one of three grounds for relief, you realize that the decision isn’t as bad as Patterico made it sound” — seeming to imply that I didn’t tell readers that the issue over the memo was one of three grounds for relief. But I did, in the first post.
Re-reading it, I guess you didn’t necessarily accuse me of misrepresenting it. Sorry if I overreacted.
Patterico (50c3cd) — 6/3/2006 @ 11:15 pmBut there’s no reason whatsoever that I should eat crow on any of this. Do you still think there is??
Patterico (50c3cd) — 6/3/2006 @ 11:16 pmGrr. Aargh. I considered that even as I was typing the line “…if you say he was entirely in the right…” I retract. I know you never said right or wrong on facts; you made that very clear. That wasn’t literally what I meant.
You said, instead, that he was doing his moral, ethical, and Constituational duty. From a less semantically discriminating standpoint, that sounded like “he’s right, in this particular kind of way” to nonlawyerMe. Sorry for the implication.
Now then. Well, sometimes these First Amendment issues go to the Supreme Court. That’s mainly what they are there for, is these constitutional claims.
Thank you, P for Patronizing. I’m trying to say that I think that’s where you and I (and the other malcontents) are parting company–that we don’t think it should have been a First Amendment case because the man was always free to say whatever the frack he wanted to. He (or anybody else) is just not always competely free to say whatever the frack you want to your employer and go on being employed. It falls under the category of “life’s not fair.” I guess I’ll have to slog through the case if I want to get any farther with you. 🙂
Anwyn (01a5cc) — 6/3/2006 @ 11:18 pmWell, I guess people can look at comments #11 and #25 and decide for themselves if I was “wrong” about what the courts “assumed.”
Anyway, as I’m sure you know, the California Legislature can pass a law at any time requiring enhanced safeguards for prosecutors who riase questions about police conduct. But I just don’t think the First Amendment was intended to prevent demotions for bad advice or stupid reports.
Andrew (7c175d) — 6/3/2006 @ 11:43 pmAnwyn,
First of all, let me say that it’s great to have you commenting. It’s a little rough-and-tumble, but please don’t let anything I say put you off from continuing to comment. I love it when a lurker unlurks.
Also, you’ll find as we go along that I’m not really as bad as I sometimes come across. I’m one of those people who, in real life, is making all sorts of comments in a completely deadpan style. Most of the time — almost always, actually — I’m just goofing around. It takes people a little getting used to, and it’s arguably a character flaw, because it puts some people off due to its unusual nature. But I like to think that it becomes endearing as you get to know me, and in any event, I am old enough (37) that I don’t think I’m changing any time soon.
Some of this spills over into my writing and commenting. If I ever seem too serious about anything, assume I’m goofing and read it again, and you’ll probably be right.
On the thing where I was being patronizing, yes, I guess I was — but I was really just teasing.
A lot of the comments are along the same lines as what you said: “Life’s not fair.” True enough. However, many constitutional violations are also not fair. The fact that they are not fair, and that life is also often not fair, does not excuse the fact that they are constitutional violations.
We wouldn’t tell a black guy turned away at the voting booth on account of his race: “Sorry, dude. Life’s not always fair.” Because it’s unconstitutional to turn him away on account of his race. The general unfairness of life has nothing to do with it.
So we’re back to the issue: is this really a constitutional violation? Now, don’t get me wrong: I don’t think it’s an easy issue. I just thing that a case like this is something that the courts have to slog through on the facts, rather than making up some simple black-letter rule that is going to pour a lot of genuine First Amendment violations out of court.
I think you share the concern of the majority when you say: “He (or anybody else) is just not always competely free to say whatever the frack you want to your employer and go on being employed.” The majority doesn’t want to make absolutely every employment dispute a (literally) federal case. But under Pickering, it’s not.
Go back to my post setting forth various examples of speech, and discussing what’s protected and what’s not. The Connick case, which is one of the biggest precedents out there, deals with the DA in New Orleans who circulated a questionnaire to her fellow employees asking them various questions about the supervisors in the office. One of the questions was: do you feel pressured to work on political campaigns? The Court said this DA was just bitching about her personnel situation, and told her to take a hike.
I don’t have a real problem with that decision. It illustrates that there are indeed situations where government employees raise issues that are really just employment disputes.
I think the Ceballos case is different. You don’t have to agree with me. But it’s important to me to try to explain why I feel this way.
Please keep commenting, and just ignore me when I act like a jerk. It happens a lot. Like I say, it’s a personality flaw. But hang around long enough and you’ll get used to it.
Patterico (50c3cd) — 6/3/2006 @ 11:50 pmAndrew,
I didn’t say that you were wrong in *everything* you said. I explicitly said at times that part of what you said was right.
The basic point, which we agree on, is that the Court dealt only with the memo.
Where you were wrong wasn’t in #11 or #25, but in an earlier comment that typed the word “memo” in capital letters, where you said:
That was wrong. But I think you corrected it since then. You might have eaten a little crow when you did it.
All I am saying is that I have eaten no crow, and have been shown no reason why I should.
Patterico (50c3cd) — 6/3/2006 @ 11:55 pmWell, if I wasn’t wrong in #11, then how come you wrote in #11 the word “wrong”?
Andrew (7c175d) — 6/3/2006 @ 11:57 pmAh, that. Yes, in part of #11, where I said you were right, you were right. In the part where I said you were wrong, you were wrong. I had forgotten that you said incorrect things in more than one comment in the thread. Sorry.
Patterico (50c3cd) — 6/4/2006 @ 12:07 amI wasn’t wrong in #11. Proof is at #25. What are you all smoking out there in LA?
Andrew (7c175d) — 6/4/2006 @ 12:12 amPatterico–Thanks! I’m happy to be commenting, too. I love this stuff–good argument without the personal vitriol found in so many elsewheres. And I did not get my nose out of joint over anything you said–“P for Patronizing” was my way of giving it back without taking it too seriously. I knew you were teasing me but felt at the same time that you weren’t considering my main point, which was the possibility that it shouldn’t be a First Amendment case. Which you have now addressed. All in all I think we’re understanding each other fine. And I don’t think you act like a jerk. My test case for that was the previous “My comment was meant facetiously,” and after your response to that I caught on to the general drift and am now swimming pretty well.
Anwyn (01a5cc) — 6/4/2006 @ 12:21 amAndrew:
Assuming something to be true for the sake of argument/analysis is not equivalent to assuming it to be true for general purposes.
This is all semantics anyway. Your point was that the case was about the memo, and we agree on that. Just don’t make out that the courts *believe* it to be true that Ceballos suffered retaliation for the memo only. That is 1) inconsistent with the summary judgment standard and 2) not what they said — only that they would assume it to be true for purposes of their analysis.
Patterico (50c3cd) — 6/4/2006 @ 12:22 amFrom #11:
So, I don’t think #11 claimed that the courts believe it to be true that Ceballos suffered retaliation for the memo only.
Patterico, seriously, if I work for NASA, and I get fired for writing a serious report for my supervisor about how the Moon is made of cheese, then do you think there’s a real First Amendment issue there? Do we really want the US Supreme Court to be the final arbiter of what is stupid and misguided, as opposed to what is constitutionally protected?
Andrew (7c175d) — 6/4/2006 @ 12:35 amPatterico, seriously, if I work for NASA, and I get fired for writing a serious report for my supervisor about how the Moon is made of cheese, then do you think there’s a real First Amendment issue there?
No. I think that could easily be resolved by the Pickering test.
Patterico (50c3cd) — 6/4/2006 @ 12:39 amThe Pickering test asks the court to weigh an employee’s interest in “commenting upon matters of public concern” against the governmental interest in “promoting the efficiency of the public services it performs through its employees.”
Would the rules for summary judgment require the court to assume that the employee’s allegation is entirely correct, and that the Moon is in fact made of cheese? And, if the Moon is made of cheese, then that would be a matter of public concern, and NASA could certainly perform its public services better if it realizes and acknowledges that the Moon is made of cheese.
This is admittedly a rather extreme example, but it shows the danger of having the Supreme Court be the ultimate arbiter of whether an internal government report is stupid or misguided, at least from my point of view.
Andrew (7c175d) — 6/4/2006 @ 12:56 amWould the rules for summary judgment require the court to assume that the employee’s allegation is entirely correct, and that the Moon is in fact made of cheese?
No.
Patterico (50c3cd) — 6/4/2006 @ 12:57 amThe Pickering test asks the court to balance public concern against governmental efficiency, and this must often be a very fact-intensive inquiry. Therefore, applying the test to internal disputes throughout all governmental offices would often require full-blown trials,seeing as how summary judgment is only available where all doubts can be resolved in favor of the party opposing the motion. Maybe a judge would be willing to say there is no doubt about whether the Moon is made of cheese, but certainly a judge would have doubt about whether a particular type of pavement is susceptible to visible skid marks, among zillions of other issues.
I guess it would be possible to have a modified Pickering rule, for cases where the speech is of public concern but is part of the speakers’ official internal duties. Accordingly, the plaintiff could only win if the public concern is immense while the impact on governmental efficiency is negligible. But even so, I suspect that Presidents Washington, Adams, Jefferson, and Madison would have been extremely surpised to learn that the First Amendment prohibited them from firing members of their cabinets for providing lousy advice that reflected badly on the cabinet member’s intelligence and competence.
Andrew (7c175d) — 6/4/2006 @ 1:43 amYou tell me, Andrew. What was the impact on governmental efficiency of Ceballos’s memo?
Patterico (50c3cd) — 6/4/2006 @ 1:45 amSeems to me Patterico is beating a dead horse here with 3 posts on this in less than 4 days.
Sharon, not every post appeals to every reader. You can just move on to the next one. I will probably do at least one more on the case before I’m done. Just skip them if you’re not interested. Some people are. That doesn’t mean you have to be.
Patterico (50c3cd) — 6/4/2006 @ 1:49 amMaybe there was not a significant impact on governmental efficiency of Cebellos’s memo. In other words, maybe Cabellos would prevail if the Pickering test were applied. But the question is who gets to balance all these factors and make a decision. Is it the hierarchy within the department, or the state legislature, or the federal courts, or a jury in a state court? Keep in mind that the department has the most expertise in determining competence of employees, and the state legislature has the most expertise in detrmining what would benefit the people of California.
It may be that Cabellos’s memo revealed him to be really unsuited for his job, or it may have revealed him to be great at his job. If the former then there would be greater governmental efficiency in having someone else in the job, and if the latter then there would be greater governmental efficiency by having him stay in the job. I don’t know the answer. But I do know that it makes little sense to apply the exact same rule (Pickering) regardless of whether a speaker is speaking as a citizen, as opposed to speaking in a professional capacity to his supervisor.
Of course, the First Amendment would prevent Cabellos from being jailed due to the contents of his memo, but surely the First Amendment would not prevent Cabellos from merely being required to take a refresher course due to the contents of his memo. So, we have to figure out where the proper line is between being jailed and getting a refresher course. Certainly, there is no irreconcilable conflict between the terms of the First Amendment on the one hand, and the state policy that allowed Cabellos to be transferred, on the other hand. I’m glad that SCOTUS is leaving this up to the people and the legislatures.
P.S. I think I should have said “supporting” instead of “opposing” in #45.
Andrew (7c175d) — 6/4/2006 @ 2:42 amPatterico, care to elaborate on your comment 44? Why wouldn’t the employee be given a chance to prove in court that the moon is in fact made of cheese? Suppose an employee of the USGS is fired for claiming the earth is less than 10000 years old? Suppose an employee of the NHS is fired for claiming that AIDS is not caused by HIV? Suppose an employee of the DEA is fired for claiming that the CIA is importing cocaine to damage black America? Suppose an employee of the CIA is fired for asserting that the President is a KGB agent? What distinguishes allegations that a plaintiff is allowed to try to prove from allegations he is not allowed to try to prove?
James B. Shearer (fc887e) — 6/4/2006 @ 4:59 pmLet me answer it this way, James: do you see a constitutional problem with sacking any of those people even if their speech is purely public — as in a letter to the editor?
Patterico (50c3cd) — 6/4/2006 @ 5:07 pmPatterico, I don’t see a problem (although if I were inclined to start making up rights I would give greater protection to off job speech). However the issue is whether these people can get past the summary judgement stage under your preferred rule. I don’t see why they can’t.
Suppose Ceballo alleged he was disciplined for complaining that evidence of CIA involvement in the LA cocaine trade was being suppressed. Should he get past summary judgment?
James B. Shearer (fc887e) — 6/4/2006 @ 5:25 pmI have no idea whether such a claim would get past summary judgment for other reasons, such as the fact that he would probably not be able to adduce any real evidence of it. But in the counterfactual situation where he could amass sufficient evidence to create a genuine dispute of material fact on that issue, it seems to me a weighty enough issue that it shouldn’t be thrown out of court on the grounds that sounding the alarm fell within his official duties.
I just don’t believe that anyone could ever amass enough evidence to get past the usual summary judgment standard on that issue.
Patterico (50c3cd) — 6/4/2006 @ 5:48 pmPatterico, so suppose he gives a list of 100 witnesses who he claims will establish suppression of CIA involvement in the LA cocaine trade. Does he get to call his witnesses? How does summary judgment work?
And you seem to be suggesting his speech is protected only if it is true. But normally First Amendment protections don’t (absent libel) depend on whether speech is true or false. I don’t think the courts should be put in the position of deciding whether speech is true or false. Who would have the burden of proof and under what standard? And suppose his speech is not true but he has a reasonable good faith belief that it is?
[Courts decide the truth of speech all the tiime. Are you suggesting libel cases can’t be decided in court? The truth of the speech goes to the competency of the employee and thus the grounds for discipline. A NASA guy could be fired for saying the moon is made of green cheese because it shows him to be either a wise-ass or incompetent. — P]
James B. Shearer (874eb4) — 6/5/2006 @ 12:11 amJames B.,
nk (d7a872) — 6/5/2006 @ 4:52 amSummary judgment means that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. It works when a) the parties agree on the facts (as probably happened in Ceballos) or b) the respondent has no evidence (affidavits, depositions, etc.) whatosever to support his allegations. One contradictory witness is enough to preclude summary judgment. You don’t need a 100. There can be no questions of credibility or weighing of the evidence in a summary judgment motion. It decides only what the state of the law is given 100% undisputed facts. I said before that I disagreed with how the legal question in Ceballos was phrased but it does no good to tweak the facts for any reason other than to speculate on the scope of the decision.
He probably wasn’t, but he’d be half-right if he did. Libel is much harder to prove in the U.S. than in the rest of the English-speaking world, where the burden of proof is on the defendant to show that the allegedly defamatory statement was true, and not on the plaintiff to prove it was false.
It couldn’t, though, if we were serious about enforcing the First Amendment under such circumstances.
Agreed, but since we’re talking about the First Amendment, how about a law imposing criminal punishments on stating facts that a court decides are not true? I’d love to see all those Gorons pay a fine for claiming Al Gore won the election 2000, but my version of the First Amendment wouldn’t allow this – though it would allow an election judge to be fired for saying the same thing.
Xrlq (f52b4f) — 6/5/2006 @ 7:34 amPatterico, what I was trying to say is that generally the First Amendment protects all speech. There are not two categories “good speech” which is protected and “bad speech” which is not. However this is not quite correct as there are a few types of “very bad speech” which have been held to be exceptions not protected by the First Amendment. These exceptions include libel, obscenity and threats. Because these exceptions are in conflict with the First Amendment the courts have required them to be defined very narrowly. Outside of these exceptions the courts have generally viewed with displeasure attempts to regulate speech based on content. I agree with this, the courts should not generally be in the business of distinguishing “good speech” (protected by the First Amendment” from “bad speech” (not protected by the First Amendment). But that is what you want them to do here. You want to protect some but not all employment related speech on the basis of the First Amendment. I don’t think this is a good idea. I don’t think off job speech should be protected by the First Amendment either but I find this more reasonable as at least such protection can be made content neutral which is obviously impossible for on job speech.
James B. Shearer (fc887e) — 6/5/2006 @ 3:05 pmTim K says in comment 20 above that the Supreme Court had “never” construed the First Amendment in the way I am advocating. This is not true as the following excerpt from White’s majority opinion in Connick v. Myers (1983) shows:
“For most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment – including those which restricted the exercise of constitutional rights. The classic formulation of this position was that of Justice Holmes, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: “[A policeman] may have a constitutional [461 U.S. 138, 144] right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517, 517 (1892). For many years, Holmes’ epigram expressed this Court’s law. Adler v. Board of Education, 342 U.S. 485 (1952); Garner v. Los Angeles Bd. of Public Works, 341 U.S. 716 (1951); Public Workers v. Mitchell, 330 U.S. 75 (1947); United States v. Wurzbach, 280 U.S. 396 (1930); Ex parte Curtis, 106 U.S. 371 (1882).”
James B. Shearer (fc887e) — 6/5/2006 @ 9:06 pmThe adverse and very serious repercussions from the Garcetti case do not originate from the details of the actions of the plaintiff or the defendant in that particular case – the problems that will enable a proliferation of corrupt and unethical behavior in public service are caused by the Court’s opinion that government employees are not protected by the First Amendment when they raise issues of public concern in the course of their employment, regardless of the validity of the allegations.
The Court has very simply and very effectively gagged government employees – the only individuals with knowledge of unethical or illegal behavior within the government – from speaking out about corruption or on other matters of public concern within the government.
This is absolutely outrageous – especially when one considers the amount of corruption that has come to light under the Bush/Republican administration. I see it as the end of democracy in America, courtesy of the Bush administration’s stance on this issue and of the justices that he appointed to the Supreme Court.
It is a very sad and scary day in America.
C.J.G. (5ef801) — 7/7/2006 @ 7:15 am