GovernmentExecutive.com

The Supreme Court on Wednesday heard arguments in a case that could determine whether federal employees enjoy First Amendment protections on the job.

In Garcetti v. Ceballos, the high court will decide whether a work-related memorandum written by a Los Angeles County prosecutor should have been treated as a form of free speech covered by the First Amendment. The memo in question, sent by Deputy District Attorney Richard Ceballos to his supervisors, describes Ceballos' concerns about possible police misconduct.

Lawyers for Ceballos argued that the March 2000 correspondence served a compelling public interest in exposing problems within a sheriff's department that six months earlier had been "shaken by one of the worst police scandals in U.S. history, involving corruption and widespread abuses by an anti-gang unit."

Ceballos claims that he experienced retaliation, including a demotion and reassignment to a branch of the district attorney's office farther away from his home, for writing the memo. In the memo, Ceballos questioned the validity of an affidavit used to secure a warrant to search the property of defendants in a criminal case.

Officers uncovered illegal drugs and weapons during that search--originally intended to look for evidence of a stolen vehicle--but Ceballos recommended that the district attorney's office drop related charges because the search warrant omitted key facts and contained "grossly inaccurate," "misleading," and possibly fabricated information.

Ceballos had worked at the DA's office since 1989 and received "outstanding" marks on performance evaluations, according to his lawyers.

The U.S. Court of Appeals for the 9th Circuit upheld Ceballos' argument that he should not have been penalized for statements in the memo and later court testimony regarding the search warrant, because his correspondence was protected under the First Amendment.

"Ceballos' speech addressed a matter of public concern and . . . his interest in the speech outweighed the public employer's interest in avoiding inefficiency and disruption," the appeals court ruled.

Government employees are "positioned uniquely to contribute to the debate on matters of public concern" and "stripping them of that right when they report wrongdoing or other significant matters to their supervisors would seriously undermine our ability to maintain the integrity of our governmental operations," the appeals court found.

But lawyers for Los Angeles County appealed the decision to the Supreme Court, arguing that First Amendment protections for work-related speech could hinder agencies' ability to manage employees and influence their performance.

"A public employer obviously cannot violate the First Amendment by dismissing, transferring, demoting or refusing to promote an employee based on the performance of job duties that do not involve speech," lawyers for federal agencies, including the Justice Department and Office of Personnel Management, wrote in a brief supporting Los Angeles County. "There is no basis for a different result in the vast number of cases where the employee performs the duties in question by speaking or writing."

The First Amendment "has nothing to say about actions based on the public employee's performance of his duties," the brief in support of Los Angeles continued.

In their arguments before the Supreme Court, lawyers for Ceballos noted that most lower courts have recently relied on precedents set by the Supreme Court in the 1968 case Pickering v. Board of Education and the 1983 case Connick v. Myers. In those decisions, the high court established that speech in government offices is protected under the First Amendment so "long as the employee is speaking on a matter of public concern and her interest in speaking is not outweighed by her employer's interest in the efficient performance of its public mission," Ceballos' lawyers noted.

"Like all citizens, the nation's public employees potentially have messages of critical public importance to communicate, sometimes to the public and sometimes to their employers--information about abuse of authority, violations of law, or gross mismanagement by the government; breaches of national security; dangers to public health and safety; and a host of other subjects of paramount significance to their communities," they wrote in their brief.

If the Supreme Court were to accept Los Angeles County's reasoning, the "nation's millions of public employees will be stripped of constitutional protection from retaliation if they communicate that information as part of their jobs," the brief continued. "The loss of First Amendment protection will create powerful incentives for them to remain silent, to avoid proper internal channels of communication and instead to go public or turn information over to less knowledgeable workplace surrogates or members of the general public."

Gil Garcetti et al. v. Richard Ceballos, Supreme Court, Docket: 04-0473

COMMENTS

• Let's see how these justices who whine about "judicial activism" and say they’re only concerned with what the Constitution actually says rule in a case where what the Constitution actually says is so obvious. They'll say they won't legislate from the bench, but just wait until they feel like restricting people's freedom and see how much they care about the Constitution then. I'm very curious to see whether Roberts will live up to his reputation as a judge, or to Bush's reputation for appointing unqualified cronies. I bet we see the "originalists" suddenly deciding that when the Founding Fathers said that people had freedom of speech, they didn't actually mean freedom of speech GovExec.com reader Posted November 2, 2005 10:29 AM
• I was preparing to respond to a local newspaper story about the basics and the impact of the National Security Personnel System (NSPS), but I have been a bit hesitant. This article confirms my reasons for being hesitant at this time. I'm also concerned about the impact of an adverse ruling on our right to engage in informational picketing. I look forward to a favorable Supreme Court ruling that preserves my right to free speech as a federal worker and my ability to contribute to the ongoing debates about NSPS and other pertinent issues. F.K. Hall Posted October 21, 2005 10:00 AM