Jack Balkin on Ceballos
Jack Balkin has an extended post explaining that the Court’s public-employee-speech doctrine, culminating in this morning’s decision in Ceballos, has strayed very far from the objectives the Court sought to advance in Pickering, to the point where it’s most protective of employee speech in the cases where it’s least important to public discourse, and not very helpful at all in cases where public employees could add real value to such discourse. Jack writes:
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.
Jack’s concerns that the Ceballos opinion will encourage governmental authorities to violate the law by punishing whistleblowers are overblown. I am a former assistant prosecutor who found myself at odds with a supervisor over a decision to proceed with an unfounded murder prosecution, and I fulfilled my Brady obligations by turning over the results of my investigation to defense counsel. Therefore, I sympathize with the position of Ceballos. What Jack didn’t note is that Ceballos first brought a separate action to prove retaliation, and only filed his First Amendment law suit after his initial action failed. The majority went out of its way to explain that governmental employees still had protection under whistleblower protection laws. All the Ceballos court did was make clear that such alleged whistleblowing by a governmental employee, made in the course of his or her official duties, is not further protected by the First Amendment. Considered that way, the Ceballos opinion is not all that surprising. Mike Reynolds
Comment by Mike Reynolds — May 30, 2006 @ 6:25 pm
I think it’s worth emphasizing that rights worth protecting need not be *constitutionally* protected. As Mike Reynolds points out above, there are whistleblower laws to protect employees in such situations. The Court’s unwillingness to find a constitutional right does not mean that employees will go unprotected.
Comment by Marc Shepherd — May 31, 2006 @ 9:38 am
For the purpose of summary judgment, the Court assumed that Ceballos’ claim that he was disciplined for writing the memo was true. This is standard practice given the procedural posture of the case. For the purpose of discussing whether he was “screwed,” to use Balkin’s word, I think the allegation is pretty far-fetched. An internal memo raising legitimate questions about the evidence is highly unlikely to get a deputy DA exiled to prosecutorial Siberia.
A very common situation in employment is that a person who is demoted, not promoted, or fired because the supervisor genuinely thinks he is a poor performer claims some illegitimate, discriminatory reason for the action and files a lawsuit which is hugely expensive for the organization, even if it ultimately prevails. The cost of such actions weighs heavily on organizations, especially government, and ultimately on society as a whole. Dedicated employees in government must work harder to cover for bums whom management will not fire because the cost of doing so is greater than their salaries. Government as a whole costs the taxpayers more than it needs to, weighing down the economy.
We must not go too far with the procedural assumption that the plaintiff’s allegations are true. For the purpose of deciding policy, we must consider the very substantial possibility they are not and the total direct and indirect costs to society of litigating them.
Comment by Kent Scheidegger — May 31, 2006 @ 10:16 am
I think Kent Scheidegger gets to the heart of things, and quite correctly. It is my humble opinion that the entire line of cases that ruled a public employee’s job is a property right with constitutional protections is wrong and have had more bad effects on government and the costs thereof than should be allowed. I believe government employees should be subject to discipline and firing to the same extent as non-government employees. That means they should have absolutely no constitutional protections or legal protections not provided by specific statute or the common law for the state in which they work.
It is ridiculous the procedures put in place to protect the erroneously granted constitutional rights of the under productive, poor performing, or just plain stupid government employee, and even this Ceballos case preserves carve outs for teachers and scholarship which is one class of government employees most in need of having no tenure or constitutional protections. These protections do not protect good teachers only the bad ones.
If the government is to run efficiently and cost effectively the ability to hire and fire employees on the same basis as private employers is what is required.
Says the “Dog”
Comment by JunkYardLawDog — May 31, 2006 @ 10:26 am
Re: Kent’s point. Apparently, one of the factors in the majority decision was the possibility of hugely intrusive court interference in the government/employee relationship had the Court ruled in favor of the prosecutor.
Comment by federalist — May 31, 2006 @ 11:26 am
“An internal memo raising legitimate questions about the evidence is highly unlikely to get a deputy DA exiled to prosecutorial Siberia.”
I stand aside from the gov’t professionals here, but this surely sounds a tad naive. Surely, out of all of the DA systems of the 50 states and the federal gov’t, there is sometimes going to be at least a few where uh this will happen.
There are documented cases where essential evidence was blocked in serious felony cases, including a few involving the death penalty. I find it just impossible to believe that is some cases, especially if the matter is close and the case senstive (involving electoral implications) that will result to a serious claim.
To turn things around, the SC (see another recent case referenced here) could very well take an “easy” case on the facts to introduce this new rule. Surely, there are alternative protection mechanisms, but the value of whistleblower laws have clearly been mixed of late. A constitutional rule is always a last resort, but so should a bright line disvowal like this one.
As to the intrusiveness fear, which surely was a concern, the opinion invited other safeguards. One safeguard surely will be whisteblower securities which (if necessary) be protected in court. This will lead to litigation. As with the opening of “airing the dirty laundry” in the press etc., I honestly don’t see how this opinion really “solves” too much.
Comment by Joe — May 31, 2006 @ 7:13 pm
The issue from a practical standpoint (and putting aside the legal issue of whether the First Amendment was intended to give license to every government employee who complained internally about something arguably a matter of public concern to claim money damages if later he or she received an adverse employment action) is whether the cure is better than the disease.
Yeah, in the real world people get screwed. Also, in the real world, our justice system screws defendants as a direct result of the expanded rights universe in which we inhabit and also imposes real costs on third parties who are real people. If we’re going to talk policy, we need to think long and hard about the consequences of things. To take an example–look at the ADA. Now no one in their right mind would think that the ADA is mean-spirited or bad from a moral sense, but it is a very open question whether ADA has helped the disabled, as a whole, and it has certainly spawned a great deal of idiocy in the federal court system (e.g., the lawsuits against BU for having a math requirement to graduate). Or one could look at some of the consent decrees that have hamstrung law enforcement and likely had a real cost in increased crime victimization.
We’ve all heard, “Justice be done, though the heavens may fall.” That’s a fine and dandy. But given the categorical approach to rights in this country, it seems that one should look very very carefully before creating new ones, especially judge-created ones.
Perhaps, we ought to think about paring some of the court-created rights back. As I write this, there is a federal court debating whether to give a convicted murderer, at taxpayer expense, sex reassignment surgery. That court has previously mandated, at taxpayer expense, sex reassignment therapy. This is simply unacceptable, and I for one, would like to see the Supreme Court rein in this nonsense, before it embarks on quests to create rights hitherto unknown.
Comment by federalist — May 31, 2006 @ 7:38 pm
Joe writes, “Surely, out of all of the DA systems of the 50 states and the federal gov’t, there is sometimes going to be at least a few where uh this will happen.”
A few out of a very large number is consistent with my statement that it is highly unlikely. Joe has refuted the claim that this never happens, but nobody made such a claim.
Comment by Kent Scheidegger — May 31, 2006 @ 9:16 pm
Kent, I think Joe’s point is that, in a country of 300 million people, “highly unlikely” events will affect sufficiently many people to be worthy of consideration by the courts and/or policy makers.
Comment by Adamos — June 1, 2006 @ 2:25 pm