In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court reaffirmed its prior decisions that the First Amendment to the U.S. Constitution protects government employees from retaliation for speaking out as private citizens on matters of public concern. But when public employees make statements pursuant to their official duties, they are not speaking as private citizens for First Amendment purposes, and the Constitution does not protect their communications from employer discipline.
Facts
Ceballos was a supervising deputy district attorney for the Los Angeles County District Attorney’s Office, also known as a “calendar deputy.” A defense attorney asked Ceballos to review a case in which, the defense attorney claimed, police obtained a search warrant using an inaccurate affidavit. After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations. After relaying his findings to his supervisors at the District Attorney’s Office, Ceballos followed up with a disposition memorandum recommending that the case be dismissed. The District Attorney’s Office nevertheless moved forward with prosecuting the case. At a court hearing on the defendant’s motion to challenge the search warrant, Ceballos repeated his observations about the inaccurate affidavit. The trial court rejected the challenge. Ceballos claimed that in the aftermath of these events, he was subjected to a series of retaliatory employment actions. These actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Claiming that his supervisors at the District Attorney’s Office retaliated against him for his memorandum, in violation of his First Amendment and Fourteenth Amendment free speech rights, Ceballos filed suit. The District Court granted summary judgment against Ceballos, ruling, among other things, that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. The Ninth Circuit reversed, holding that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). The District Attorney’s Office appealed. Garcetti at 413-417.
The Court’s Decision
The Garcetti Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and therefore the Constitution does not insulate their communications from employer discipline. The Court then determined that Ceballos did not speak as a citizen when he wrote his memo and, therefore, his speech was not protected by the First Amendment.
First Inquiry: Speech as Private Citizen on Matter of Public Concern
First, the Court laid out the law governing First Amendment protections for public employees. The law involves two inquiries. The first inquiry, under Pickering and Connick, requires determining whether the employee spoke as a citizen on a matter of public concern. See Pickering, 391 U.S. at 568. If the answer to that question is no, the employee has no First Amendment cause of action based on the employer’s reaction to the speech. See Connick, 461 U.S. at 147.
Second Inquiry: Adequate Justification for Treating Differently than General Public
If the answer is yes, and the employee did speak as a citizen on a matter of public concern, the possibility of a First Amendment claim arises. The analysis moves to the second step, and the question becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. Garcetti at 418 (citing Pickering, 391 U.S. at 568).The Garcetti Court observed that this consideration reflects the importance of the relationship between the speaker’s expressions and employment. Without a significant degree of control over its employees’ words and actions, a government employer would struggle to provide public services efficiently. Thus, a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations. Garcetti at 418-19 (citing Waters v. Churchill, 511 U.S. 661, 671 (1994) and Connick, 461 U.S. at 143). On the other hand, the Court observed, a citizen who works for the government is still a citizen. Under the Court’s precedent, the First Amendment limits a public employer’s ability to leverage the employment relationship to restrict, incidentally or intentionally, the free speech rights employees enjoy in their capacities as private citizens. Garcetti at 419-20 (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972). As long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Garcetti at 419-20 (citing Connick at 147.)
Speech Pursuant to Official Duties
Balancing these considerations, the Court then determined that under its precedents the First Amendment does not prohibit a government employer from disciplining an employee based on the employee’s expressions made pursuant to her or his official responsibilities. Garcetti at 419-20.The Court then turned to Ceballos’ situation. It determined that Ceballos’ memo fell into the category of expression made pursuant to his official responsibilities. Therefore, Ceballos did not have a viable claim for First Amendment retaliation based on his employer’s response to his memo. Id. at 420-23. Importantly, the Court observed that the dispositive factor was not that Ceballos expressed his views inside his office, rather than publicly. Id. at 420 (citing Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 414, (1979). Nor did it matter that Ceballos’ memo concerned the subject matter of his employment. Id. at 420-21 (citing Pickering, 391 U.S. at 573). The controlling factor was that Ceballos’ expressions were made pursuant to his official duties. The Court observed that that consideration distinguished Ceballos’ case from other cases in which the First Amendment protected public employees from retaliation for their speech. Ceballos wrote his memo because that was part of what he was employed to do. Therefore, the Court determined, he did not act as a citizen by writing it. The fact that his duties sometimes required him to speak or write did not mean his supervisors were prohibited from evaluating his performance:
Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.
Garcetti at 421-22 (citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995). The Court observed that this result was consistent with its prior emphasis on the potential societal value of employee speech and on allowing government employers sufficient discretion to manage their operations efficiently. Garcetti at 422-23. The Court pointed out that Ceballos’ proposed different rule, prohibiting public employers from disciplining employees for speech made pursuant to their official duties, would overly involve the judicial system in the daily operations of government agencies. This “would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business.” Id. at 423.
Protected Public Speech Versus Unprotected Speech Pursuant to Official Duties
The Court reviewed its precedents and found that they did not support the notion that judicial supervision should displace an employer’s managerial discretion where the official duties of its employees are concerned. Thus, the Court’s prior decisions were consistent with the Garcetti Court’s conclusion, that public employers may be compelled to tolerate certain employee speech made publicly, but not speech made pursuant to an employee’s assigned duties:
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. The same goes for writing a letter to a local newspaper [like the employee in Pickering], or discussing politics with a co-worker [like the employee in Rankin.] When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.
Id. at 423-24 (citing Pickering and Rankin v. McPherson, 483 U.S. 378 (1987).)
Analysis
In short, Garcetti made clear that the First Amendment protects public employees from retaliation for speaking out as private citizens on matters of public concern. That protection can apply even when the speech is made inside the office, rather than publicly, and even when the speech concerns the subject matter of the public employee’s employment, so long as the employee is speaking as a private citizen. But when public employees make statements pursuant to their official duties, they are not speaking as private citizens for First Amendment purposes, and the Constitution does not protect their communications from employer discipline.
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