Today’s (Very Significant) Opinion and Order List
The Court issued its opinion today in Garcetti v. Ceballos, No. 04-473, originally argued in the Ocotber sitting and then reargued after Justice Alito joined the Court. Justice Alito’s was the fifth vote in favor of reversal (although we don’t know for certain whether the judgment or opinion would have been different with Justice O’Connor participating). Justice Kennedy wrote the majority opinion, which the Chief Justice and Justices Scalia, Thomas and Altio joined. As I predicted here, Justice Souter — who likely was assigned to write the majority before Justice O’Connor’s retirement — wrote a dissent, joined by Justices Stevens and Ginsburg. Justices Stevens and Breyer each also filed dissenting opinions.
The looming question in the case was not so much the outcome but the Court’s rationale — and, in particular, the question whether the Court would hold that a government employee’s speech in her “official capacity” is entitled to no constitutional protection — not even of the modest Pickering/Connick/Waters variety. The Solicitor General urged the Court to hold that “the First Amendment has nothing to say about actions based on [a] public employee’s performance of his duties.”
Today, the Court took that very signifiant step, holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of “public concern” — a very significant doctrinal development.
Or perhaps not quite. In order to issue such a holding, the Court would have had to distinguish or overrule Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), which provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices. Citing Givhan, Justice Kennedy writes that “[t]he First Amendment protects some expressions related to the speaker’s job,” even when made within the workplace. But, he argues, “[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.”.
So, it appears that if one’s duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today’s opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers. Does today’s decision therefore give employees an incentive to go outside the established channels — to take their concerns to the newspapers, instead of up the established chain to their supervisors? Justice Kennedy has two responses to this perceived “doctrinal anomaly”:
First, “[t]his objection misconceives the theoretical underpinnings of our decisions. 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, see Pickering, 391 U. S. 563, or discussing politics with a co-worker, see Rankin, 483 U. S. 378. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.”
Second, the practical concern is overstated, according to the Court, because if “a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.”
And what does this decision portend for the constitutional rights of teachers in their classroom speech and in their scholarship? The answer is not yet clear. Here’s Justice Kennedy again: “There 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. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
Here is today’s Orders List.
If this is extended to the academic setting, it will be a very bad precedent indeed.
Professors’ classroom speech is generally part of their official job duties.
Do we really want a rule where people whose jobs are most devoted to expressive purposes have the least First Amendment protection as a result?
And would a professor’s research be deemed to be in his official capacity?
Historically, the Pickering balancing test was applied in a more speech-protective fashion for professors and teachers than for employees in more regimented professions.
Now, ironically, the reverse may be true.
Interesting hypothetical: Under this precedent, could an employer deprive whistleblowers of the free-speech protection they would otherwise enjoy under the Supreme Court’s public-employee speech jurisprudence by defining the whistle-blowing itself as a job requirement (official capacity speech)?
Comment by Hans Bader — May 30, 2006 @ 10:43 am
The court’s opinion effectively leaves open both of the important questions I raised in my comment:
1. Does today’s ruling apply to professors’ speech (maybe, maybe not, says the court; special considerations may apply to the academic setting); and
2. Does today’s ruling allow whistle-blowers who blow the whistle OUTSIDE their official job duties to be punished if the crafty public employer redefines such whistleblowing as a job requirement (no, says the court, because that would be a pretext, and what matters is the “practical” scope of an employee’s job duties, not what an employer says; but the court never explains how to distinguish between practical and nominal job duties).
The fact that these questions are even open means that public employees whose free speech rights are violated will often not be able to find attorneys to represent them, because public employee speech cases are only financially worth bringing when the law is not open to dispute but rather quite clear.
Where the law is unclear, the defense of qualified immunity (which applies to First Amendment and constitutional cases but generally not to statutory cases such as Title VII and other antidiscrimination cases) will bar an attorney from any fees and the client from any damages.
And no attorney will take such a case.
First Amendment cases are already not as financially feasible to take as other kinds of federal cases, such as discrimination cases.
This will exacerbate the disparity.
The courts are not exactly clogged with First Amendment cases as it is. There are way more Individuals with Disabilities Act cases against school districts, for example, than there are First Amendment cases involving those districts.
Comment by Hans Bader — May 30, 2006 @ 11:23 am
I don’t think this case has anything to say about whistleblowing protections, since I believe those protections are statutory, not constitutional. Am I mistaken?
Comment by Roger — May 30, 2006 @ 12:41 pm
It seems to me that the Court is just going too far with this case. As typical bad facts made bad law. Here the guy is preparing memo(s) that involve some uncomplimentary information perhaps about the police force and possibly the prosecutor’s office, as part of his job in recommending a dismissal. Also he testified apparently for the defense. Now I can see that if you receive an adverse employment action based on performance, you should not be protected under the 1st amendment, from that adverse employement action. However, if this truly was retaliation for what he said in the memos and his adverse testimony, which reflected badly on the petitioners, then he should be protected.
It should not make a difference if it was in a memo to supervisors or to the newspaper. The latter I think would seem more egregious and unacceptable to the employer than the former.
I agree with the dissent that this is just wrong to say if it is within your duties then you’re not protected. It would have been better if they just said that the speech did not implicate the 1st amendment, because the speech was not whistleblowing protected speech, based on the speech not the job, and just leave it there.
I don’t know the facts, but I think this sounds more like wrongful termination, not 1st amendment or whistleblowing. So although the outcome is probably right the opinion’s holding appears to be conservative activism which is not accurately supported by authority or sufficient legal argument.
Comment by txexspeedy — May 30, 2006 @ 12:47 pm
The concerns expressed about academics is valid, but a constitutional rule would necessarily be inadequate protection. It would not apply to colleges that are not state-run.
Ideally, stifling conformity in an academic institution would be damaging to its reputation, and government control would not be necessary. Regrettably, even the president of a prestigious university can be run out of town for politically incorrect remarks and the university remains prestigious.
Comment by Kent Scheidegger — May 30, 2006 @ 1:35 pm
Typo: the previous comment should have said “concern” without an “s”.
Comment by Kent Scheidegger — May 30, 2006 @ 1:39 pm
Please ignore my last comment. I misread souter for stevens in your post. Sort of like Scalito I guess.
Comment by valpodogs — May 30, 2006 @ 3:01 pm
A First Amendment rule protecting professor speech against government reprisals would indirectly benefit even professors at private colleges.
This is so even though the First Amendment does not itself restrict discipline by private colleges (since the First Amendment only limits speech restrictions by the government, not by private institutions acting voluntarily), since collective bargaining agreements and other contracts between private colleges and their faculty commonly contain “academic freedom” provisions.
Contractual academic freedom provisions are commonly interpreted as providing at least as much protection as the First Amendment would accord professors at a state college.
For example, in Silva v. University of New Hampshire, 888 F.Supp. 293 (D.N.H. 1994), the court took a fairly expansive view of the First Amendment protection for a professor’s in-class speech.
Then, as an alternative basis for its decision, it also ruled in favor of the professor on his contractual “academic freedom” claim, concluding that his contractual academic-freedom rights under his AAUP agreement were at least as broad as his First Amendment rights.
It is possible that broad interpretations of professors’ contractual rights to academic freedom could survive even a shrinkage of the scope of professors’ constitutional protection under the First Amendment, since the contracts mention academic freedom, whereas the First Amendment does not expressly mention, or protect, academic freedom at all.
But given the ambiguity of what “academic freedom” means even in the contractual setting (where it is shaped by custom and tradition as well as the First Amendment), and the tendency of some judges and arbitrators to treat contractual and constitutional protections as coextensive, a shrinkage of the scope of First Amendment protection may lead to some erosion in the scope of contractual academic freedoms as well.
Comment by Hans Bader — May 30, 2006 @ 4:07 pm