ACSBlog: The Blog of the American Constitution Society

In a 5-4 decision, the Supreme Court held today that the First Amendment does not apply to government employees who speak within the scope of their employment. In Ceballos v. Garcetti, Richard Ceballos, a supervising prosecutor, wrote a memo to his superior arguing that a case should be dropped due to inaccuracies in an affidavit. Ceballos was subsequently reassigned as a trial attorney, transfered to a new courthouse, and denied a promotion. He argued that these actions were retalliation for his writing the memo, in violation of his First Amendment rights.

The Court held that Ceballos is entitled to no First Amendment protection for his speech in this case. In an opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, the Court explained that drafting the relevant memo fell entirely within Ceballos' "job duties." "When a public employee speaks pursuant to employment responsibilities," the Court held, heightened scrutiny under the First Amendment is inappropriate.

In dissent, Justice Souter expressed hope that "today's majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to official duties.'" The majority opinion acknowledged that "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence," but expressly reserved this issue for a later date. In other words, while internal office memos are entitled to no First Amendment protection under Ceballos, it remains unclear whether a public university law professor who publishes an unpopular article, or a public school teacher who displays a picture of the Flying Spaghetti Monster in her classroom, are entitled to First Amendment protection.

Professor Marty Lederman also suggests that this case may be an early window into the impact of Justice Alito on the Constitution. According to Lederman, Justice Souter was probably assigned the majority opinion prior to Justice O'Connor's departure, but her replacement with Alito shifted the majority towards the conservatives.

UPDATE, 5/30/06, 5:29pm: Professor Jack Balkin criticizes this opinion as providing the least protection to the most valuable speakers:

After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer's internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, whatever they do, they are pretty much screwed. So the effect of the Court's decision is to create very strong incentives against whistleblowing of any kind. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don't have to reveal their sources).

I am sympathetic to the Court's desire to reduce the burden of ad hoc balancing by creating a bright line rule of no protection. But in this case, the Court's decision doesn't really create a bright line rule, because the boundaries of what is within an employee's job description may turn out to be quite contestable, and will be contested in future cases. Perhaps more important, the Court resolves the original tension in its doctrine by creating a rule that completely undermines the doctrine's information policy goals. All the doctrine does now is protect people like the dispatcher in Rankin v. McPherson, who is contributing nothing to information about the government's operations, but is just blowing off steam. Perhaps the dispatcher does deserve First Amendment protection, but the doctrine shouldn't be organized around her.