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Court to rehear public employee speech case

The Supreme Court on Friday ordered re-argument in a significant pending case on the free speech rights of government employees — Garcetti v. Ceballos (docket 04-473). There were no grants of new cases on Friday. Here is the Orders List. The Court will next issue orders on Tuesday, and there could be new grants at that time.

The new argument is expected to come during the current Term, either in March or April. The regular calendars for those months are full, but only for morning sessions.

The Garcetti case tests whether the First Amendment protects comments that public employees make in the course of performing their regular duties. It involves Richard Ceballos, a deputy prosecutor in Los Angeles County who wrote a memo to his superiors blowing the whistle on a flawed search warrant. He was taken off the prosecution team in the case, and transferred to a less desirable office; he contended this was in retaliation for his exercise of free speech rights.

The lead prosecutor at the time, Gil Carcetti, contended that, since the comments were made during the deputy’s normal duties, they should not be entitled to First Amendment protection under prior public employee speech precedents. The Ninth Circuit Court rejected that argument, finding that Ceballos’ comments were protected against retaliation.

The Court heard argument in the case early in the Term — on Oct. 12. The decision to order it re-argued may mean that the Court was closely divided as it deliberated on it, and Justice Sandra Day O’Connor’s departure in retirement had left the Court facing the prospect of a 4-4 split. If that is the reason for the new hearing, the new Justice, Samuel A. Alito, Jr., very likely would hold the decisive vote.

In other orders Friday, the Court agreed to allow the U.S. solicitor general to take part in the oral argument March 1 on the Texas congressional redistricting cases (05-204, and others), ordered divided argument in a major business tax incentive case (04-1704 and 04-1724), and permitted the state of Kansas to join in the argument on a criminal case involving evidence of third-party guilty (04-1327).