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Having set the case for reargument to permit new Justice Samuel Alito Jr.’s voting participation, the Supreme Court decided in Garcetti v. Ceballos, No. 04-473 (May 30, 2006), that public employees are not protected by the First Amendment for “expressions made pursuant to office responsibilities.” Justice Anthony Kennedy’s 5-4 opinion for the Court leaves open whether government attorneys have a somewhat broader scope of protection because of “rules of conduct and constitutional obligations apart from the First Amendment”; and whether “speech related to scholarship or teaching” might be accorded greater latitude because of considerations of academic freedom. Public employees might also in some circumstances be able to structure their remarks so as to create a clear line between their expression and job-related duties. State whistle-blower and civil service statutes may also be available. Even with these caveats, however, the Court’s ruling marks an important limitation on the scope of freedom of speech in the workplace. Garcetti highlighted for the Justices the tension between desirable personnel policy, which seeks to encourage employees to pursue internal channels before going public with their problems, and the difficulties inherent in “constitutionaliz[ing] the employee grievance.” Comforted in part by “the powerful network of legislative enactments � such as whistle-blower protection and labor codes � available to those who seek to expose wrongdoing,” the majority opted to avoid what it regarded as a slippery constitutional slope involving “judicial oversight of communications between and among government employees and their supervisors in the course of official business.” Richard Ceballos, then serving as a calendar deputy in the district attorney’s office in Los Angeles county, was asked by a defense attorney to review the accuracy of representations made in an affidavit used to obtain a search warrant in a pending case. Mr. Ceballos determined that the affidavit contained serious misrepresentations; he then wrote a memorandum to Carol Najera and Frank Sundstedt, his supervisors in the district attorney’s office, recommending dismissal of the case. Ms. Najera and Mr. Sundstedt held a meeting with Mr. Ceballos, the warrant affiant, and other members of the police department to discuss the matter. Despite Mr. Ceballos’s concerns, Mr. Sundstedt decided to proceed with the prosecution. On defendant’s motion to traverse, Mr. Ceballos was called by the defense as a witness. The trial court, however, rejected the challenge to the warrant. Mr. Ceballos subsequently complained that because of the concerns he had expressed about the search warrant affidavit, the district attorney’s office retaliated against him by reassigning him to a lower trial deputy position, transferring him to another courthouse further away (apparently known as “freeway therapy” in the city), and denying his due promotion. He then sued under 42 USC �1983, claiming that the district attorney and his supervisors violated his First and Fourteenth Amendment rights. The district court granted summary judgment in favor of the district attorney’s office because Mr. Ceballos wrote the memo pursuant to his employment duties. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that “[Mr.] Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.” The court drew a line based on the content of the speech: between speech on matters of “public concern” and those of “personal interest.” Mr. Ceballos’s speech did not fall into the category of “personnel grievances” or “routine discharge of assigned functions, where there is no suggestion of public motivation.” Rather, his memorandum and subsequent meeting with his supervisors and the warrant affiant involved allegations of police and prosecutorial misconduct, information within the “public interest” and constitutional protection. The U.S. Supreme Court agreed to hear the case and reversed the appeals court’s judgment by relying on the basic framework announced in Pickering v. Board of Education, 391 U.S. 563 (1968). Under Pickering, the Court employs a balancing test where the interests of the government worker “as a citizen, in commenting upon matters of public concern,” are weighed against the interests of the state “as an employer, in promoting the efficiency of the public services it performs through its employees.” The Garcetti holding creates an important new gloss in deciding the threshold inquiry: whether the government worker is speaking as a citizen on a matter of public concern. Unlike the Ninth Circuit’s analysis, which turned on the content of the speech, the Court emphasizes whether the speaker is acting in the role of “citizen.” When a citizen enters government service, he accepts certain limitations on his freedom; likewise, the government acting as an employer may control individuals in ways it cannot when the government acts as a regulator. In the Court’s view, the public employee speaks as a citizen only to the extent he engages in speech that could be made by a member of the general polity, not speech that flows out of his or her duties as a governmental agent. The majority’s reasoning reveals its reluctance to “commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business.” However, the Court hints that academic scholarship may be an exception to Garcetti’s rule. Furthermore, Justice Kennedy for the Court takes comfort in state and federal whistle-blower statutes that will protect the public interest in knowing about and guarding against government corruption in those situations where the First Amendment does not apply. Justice David Souter’s dissent characterizes the Court’s threshold distinction between “citizen” and “employee” as arbitrary. For one, the Pickering test already balances the individual’s interest in free speech against the government’s interest in civility, consistency, and efficiency. Layering an additional inquiry onto the test does nothing to further these interests, as “a government paycheck does nothing to eliminate the value to an individual of speaking on public matters.” Furthermore, both employee and government interests may be even more pronounced when an employee speaks on issues intimate to his job, which means a balancing test for evaluating these interests is all the more essential. Souter questions whether First Amendment protection should be lifted from “a public auditor [who] speaks on his discovery of embezzlement of public funds, when a building inspector makes an obligatory report of an attempt to bribe him, or when a law enforcement officer expressly balks at a superior’s order to violate constitutional rights he is sworn to protect.” Writing separately, Justice Stephen Breyer attempts to stake out a middle ground that stresses the perceived public importance of the speech. When an employee speaks in the course of his ordinary duties on a matter of public concern, the matter may or may not reach the Pickering balancing test depending on whether there is the “presence of augmented need for constitutional protection and diminished risk of undue judicial interference with governmental management of the public’s affairs.” Mr. Ceballos, in his view, should receive First Amendment protection because his speech is subject to independent regulation by the legal profession, and he was arguably giving effect to an independent constitutional obligation to ensure disclosure of exculpatory information to the defense. Estreicher is Dwight D. Opperman Professor of Law at New York University School of Law and of counsel to Jones Day in New York, specializing in the labor and employment and issues and appeals practice areas. Heather G. Childs, a summer associate at Jones Day who will be clerking in the fall for Judge Emilio Garza of the U.S. Court of Appeals for the Fifth Circuit, assisted with this article.

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