Ceballos v. Garcetti — What Difference Will Alito Make?
on Feb 19, 2006 at 3:01 pm
That was the question recently posed on a constitutional law academic discussion list. Ceballos is the lone case that the Court has (thus far) restored to the calendar for reargument in the wake of Justice Alito replacing Justice O’Connor. [UPDATE: I’m informed the reargument might be this Term, despite the fact that the Court has accepted enough cases to fill the April sitting.]
This was the gist of my response to the “What difference will Justice Alito make?” question:
The employee will lose, and there may even be a holding that a government employee’s speech in her “official capacity” is entitled to no constitutional protection. Either or both of those results might have occurred even with Justice O’Connor’s vote — although I doubt it, as Justice Souter was probably assigned to write the majority opinion. But the former is almost certain now, and the latter a distinct possibility. Fairly safe prediction: There will be a Souter-penned dissent.
Somewhat surprisingly, the Court has never quite decided whether “official capacity” speech is entitled to any First Amendment protection — not even of the modest Pickering/Connick/Waters variety. (The closest case might have been Rankin v. McPherson, which dealt with workplace speech, but not speech undertaken in the firtherance of the employee’s job-related functions.) The Solicitor General has 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.” If the Court holds 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,” that could be a very important doctrinal development. Therefore, oral argument next Term could be very interesting, with all eyes on Justice Alito, and all ears on the remarks of other Justices “lobbying” for his vote.
Here’s an earlier summary of the case by Nat Garrett. The transcript from the October 12th oral argument can be found here.. (Among the reasons that the transcript is interesting is that it contains a rare instance (see page 13) of one Justice (Justice Scalia) addressing a question to another Justice (Justice Stevens) by that Justice’s first name.)
