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The U.S. Supreme Court ruled, 5-4, that public employees making statements pursuant to their official duties are not speaking as citizens for First Amendment purposes, even if they are alleging government wrongdoing, and the U.S. Constitution does not insulate their comments from employer discipline. Garcetti v. Ceballos, No. 04-473. In February 2000, Richard Ceballos, a deputy district attorney in the Los Angeles County District Attorney’s Office, was notified by a defense attorney that there were inaccuracies in an affidavit used to obtain a search warrant. Ceballos determined that the affidavit contained serious misrepresentations, and wrote a memo to his supervisors expressing his concerns and recommending dismissal of the case. His recommendation was ignored and the district attorney’s office went ahead with the case. Alleging that he was subjected to a series of retaliatory employment actions, Ceballos filed a 42 U.S.C. 1983 suit in a California federal court, claiming violation of his First and 14th amendment rights. The court ruled that since Ceballos wrote his memo pursuant to his employment duties the memo was not entitled to First Amendment protection. Alternatively, even if Ceballos’ speech was constitutionally protected, his employer had qualified immunity because the rights Ceballos asserted were not clearly established. The 9th U.S. Circuit Court of Appeals reversed, holding that because Ceballos’ memo had pointed out governmental misconduct, something that is “inherently a matter of public concern,” it enjoyed protection under the First Amendment. The justices reversed. Writing on behalf of the court, Justice Anthony M. Kennedy said that the First Amendment limits an employer’s ability to restrict employees’ liberties as private citizens. So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. However, the First Amendment does not prohibit managerial discipline based on an employee’s comments made pursuant to his official responsibilities. Ceballos wrote his memo as part of his official duties. He acted not as a citizen but as an employee. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties an employee enjoys as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. “Exposing governmental inefficiency and misconduct is a matter of considerable significance, and various measures have been adopted to protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. These include federal and state whistleblower protection laws and labor codes and, for government attorneys, rules of conduct and constitutional obligations apart from the First Amendment. However, the Court’s precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job,” Kennedy wrote. His opinion was joined by Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented.

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